Over the past two years, we have seen an increasing number of GDPR claims being made alleging that an individual’s data protection rights have been breached.
Ramphal v Department for Transport
Mr Ramphal was an Aviation Security Compliance Inspector for the Department for Transport. He was under investigation following the result of a random audit of his expenses claims, which flagged approximately 50 claims requiring further investigation. These related to excessive petrol consumption, possible use of his hire car for personal reasons and suspicious subsistence expenses such as purchasing two meals or two cups of coffee.
Mr Goodchild, Head of Land Security Compliance, was appointed to carry out the investigation as well as being the disciplinary chair. Mr Goodchild had not previously acted in disciplinary proceedings so he met with HR officers, familiarised himself with the disciplinary procedure and, in particular, noted the distinctions between misconduct, gross misconduct and the appropriate penalties.
On 11 September 2012, Mr Goodchild sent the first draft of his report to HR. In summary, this report was partly critical but it also contained a number of favourable findings such as:
- There was no compelling evidence that the Mr Ramphal’s actions were deliberate;
- The explanations in relation to petrol were consistent and plausible; and
- Mr Ramphal had made a persuasive argument in relation to his fuel expenditure.
He went on to recommend a finding of misconduct with a final warning.
Between 11 September 2012 and 5 March 2013 (almost six months) HR and Mr Goodchild were in communication about the report and several drafts were produced. The report changed significantly, favourable references to Mr Ramphal were removed and were replaced with critical findings. The proposed finding of misconduct was changed to a finding of gross misconduct with a recommendation of dismissal.
The EAT referred to the Supreme Court case of Chhabra v West London Mental Health NHS Trust in which it was found that,
“There would generally be no impropriety in a case investigator seeking advice from an employer’s human resources department, for example on questions of procedure. I do not think that it is illegitimate for an employer, through its human resources department or similar function, to assist a case investigator in the presentation of a report, for example to show that all necessary matters have been addressed and achieve clarity.”
The EAT were of the view that if the integrity of the final decision to dismiss has been influenced by persons outside the procedure it would be unfair.
The EAT referred the case back to the Employment Tribunal to determine whether the influence of HR was improper and, if so, whether it had a material effect on the ultimate decision of Mr Goodchild, both in relation to Mr Ramphal’s culpability and whether there was such influence on the decision that he had been guilty of gross negligence and should be summarily dismissed.
What is the impact of this decision?
The case suggests HR should limit their advice to questions of law, procedure and process. Our view is that HR teams will now need to be more careful in the way they advise colleagues carrying out investigations and, in particular, when coming to decisions on disciplinary hearings. Advice on sanctions should focus on:
- Reminding of the relevant factors to consider including:
- Consistency with policy and previous outcomes
- Length of service
- Impact on the organisation/third parties/regulators
- Mitigating circumstances
- Disciplinary record
Where HR remain concerned about a proposed course of action we would suggest legal advice is sought for the decision maker as this advice will be subject to legal privilege.
Employers should also be aware that:
- Internal correspondence (for example, emails between HR and Managers, minutes of meetings, notes of telephone calls, draft reports) are not protected by legal professional privilege, which means they will need to be disclosed in legal proceedings.
- For a fee of £10 employees (or former employees) can request details of all the personal data the organisation holds about them, this will include personal data within notes of deliberations between managers and HR advisers.
Employers should carefully consider their method of communication and have in mind how they would feel if the employee or an employment tribunal judge were reading any written communications/notes.
It is also of note that it is generally not advisable to recommend a sanction in an investigation report as that will be a matter for the disciplinary chair to decide. However in this case the investigator and disciplinary chair were the same person and the investigatory report appears to have been used as a “decision report”.
For further information
Please contact Faye Rush
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