Legal Update - November 2015
Unfair Dismissal Following HR Overly Influencing Disciplinary Investigation
The Employment Appeal Tribunal (EAT) has allowed an appeal against the original Employment Tribunal’s decision that an employee had been fairly dismissed in circumstances where the Investigating Officer’s recommendations had been unduly influenced by input from Human Resources.
The Claimant was employed by the Department for Transport (DFT) as an Aviation Security Compliance Inspector. His duties required a significant amount of travel, for which he was entitled to receive subsistence. He was entitled to hire a car and he had a company credit card to pay for the vehicle as well as expenses. He was not permitted to use the credit card for personal expenses and there were limits on the subsistence he was entitled to.
In February 2012, the Claimant was selected for an audit of his transport and subsistence claims which highlighted 50 items to which the Claimant was unable to explain the items to his manager. No further action was taken.
An investigation was conducted again in June 2012, following further concerns and excessive petrol use. The DFT appointed a manager to carry out the investigation and also the disciplinary. The manager had no previous experience of disciplinaries and therefore met with HR Officers for guidance, as well as reviewing the company’s disciplinary procedures. The Disciplinary Hearing was held on 13th August 2012.
On 11th September 2012, the manager sent his first draft of his report to Human Resources. Although the report was mainly critical, it did contain a number of favourable findings in relation to the Claimant such as finding the Claimant’s misuse was not deliberate. The manager therefore recommended that a sanction of a final written warning to be issued.
Communications between the manager and HR then followed for approximately 6 months leading to a complete change of view on the manager’s findings of fact and recommendations on the sanction. Over the course of the various drafts of the outcome, HR suggested amendments and the favourable comments were removed and replaced with critical comments. The overall view became one of gross negligence with a recommendation of summary dismissal for gross misconduct. The Claimant was therefore dismissed and sought a claim for unfair dismissal.
The Employment Tribunal concluded the decision was based upon as much investigation as was reasonable in the circumstances, and therefore the decision to dismiss was within the band of reasonable responses open to a reasonable employer. The Employment Judge felt that the manager did not appear to be “much influenced” by HR. The Claimant appealed.
The EAT allowed the appeal and remitted the case back to the Employment Tribunal to consider the claim again. The EAT held that the report of an Investigating Officer for a disciplinary enquiry must be the product of their own investigations. They therefore found that the dramatic change in the manger’s approach after the HR’s intervention was “disturbing” and, HR clearly involve themselves in issues of culpability which should have been reserved for the manager.
The changes were such that they gave rise to an inference of improper influence. The Employment Judge should have given clear and cogent reasons for accepting that there was no such influence.
An Investigating Officer is entitled to call for advice from HR but the advice must essentially relate to questions of law and procedure and avoid straying into areas of culpability. This case therefore provides employers with helpful guidelines as to exactly how much involvement and influence HR should have in such matters. In particular, HR should not advise on what appropriate sanctions should be, outside of addressing issues of consistency. Significant influence by Human Resources in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in a finding of unfair dismissal.
Case: Ramphal v Department for Transport UKEAT/0352/14
Motor Industry Legal Services
MILS Case Study: Victimisation
“I had an employee who made a lot of trouble. She said a manager has harassed her and she began threatening to bring a claim against the company. I dealt with the manager, but I can’t have employees threatening the company with litigation so I dismissed her on those grounds.”
I have also now had a reference in for her from a new employer and I don’t see why, given her threats, I should send a reference.”
The problem with the employer’s situation above is that it may give grounds for the ex-employee to make a claim of “victimisation”.
In employment law “victimisation” is a very specific claim, about which many employers have limited understanding and knowledge. It does not really carry the same meaning as the ordinary English definition of victimisation. In the United States, this form of discrimination is known as “retaliation”, a term which is perhaps more accurate for what is involved.
In summary, a claim for victimisation can be brought where an employee is subjected to any detriment from the employer because the employee has done a “protected act” or indeed the employer believes that the employee has done a “protected act”.
A “protected act” in victimisation can be bringing proceedings under the Equality Act (which covers all forms of discrimination), giving evidence or information in connection with the proceedings, or even just making an allegation that the employer has contravened the Act.
In layman’s terms this means that if an employee has alleged sex discrimination and is threatening that an employer is in breach of the Act, or that he or she is going to bring proceedings, then any detrimental treatment because of the same could give rise to a claim in its own right, a claim of victimisation in the Employment Tribunal.
Likewise, in the above scenario, refusing to give a reference because the ex-employee threatened proceedings is also an act of victimisation and give rise to a Tribunal claim. Indeed the law here is even wider and it is important to note that the person doing the victimising need not be the person who is the subject of the original complaint of discrimination. It follows that if the prospective employer in the scenario above decided not to appoint the ex-employee because he or she had brought or given evidence in proceedings against the former employer, then that would amount to victimisation too.
It is important therefore as an employer not to “retaliate” against an employee who is making allegations or bringing proceedings. There are potential defences available to an employer if the claims are in bad faith or there are genuinely separable other reasons for the treatment of the employee, other than the allegations of contravention of the Act.
There are obviously close ties between this form of claim and other whistle-blowing claims, in which allegations from employees (if they fall in certain protected categories) can give them protection from detriment and/or dismissal.
The advice to employers is to deal with all complaints and grievances carefully and fairly under their grievance procedures and to make sure that you can justify any treatment on other genuine grounds if an employee is, you believe, attempting to give themselves the protection of the Act without good justification.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.