The Employment Appeal Tribunal has said that HR involvement with the investigating offier, hearing manager or deciding officer should not go beyond legal advice, and advice on matter of process and procedure.
In the case of Ramphal v Department of Transport, the investigating officer liaised with HR over seven months and provided six different investigation reports with Findings that ranged from a first-written warning right through to summary dismissal. The EAT characterised the progress of the versions as “… a complete change of view on factual findings and recommendations as to sanction”. They also particularly noted that “favourable comments are removed and replaced with critical comments.”
The EAT remitted the case Ramphal v Department of Transport bact to ET to determine whether the changes to the investigating officer’s report were as a result of excessive influence by the HR professionals concerned. The EAT stated that HR’s role should be restricted to guidance around process and the legal issues, rather than making a decision on the facts and culpability. The latter aspects should be dealt with by the investigating officer or the decision maker only.
In a second case, Chabra v West London Mental Health Trust, the EAT stated that “… an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should also be given notice of any changes in the case that he has to meet so that he can deal with them, and also given notice of representations made by others to the dismissing officer that go beyond legal advice, and advice on matter of process and procedure.”
This does not mean that HR cannot suggest adjustments to an investigation report, but it does mean there are limits to the role of HR. The report needs to be the investigator’s report and not that of an HR advisor by proxy.
So what should you being doing
Option 1. Train your investigation team
- Train hearing managers/investigating officers to carry out robust and accurate investigations in line with your policy and best practice standards, removing them from an over-reliance on HR support.
- Train HR understand their role in coordinating and managing the investigation, so they don’t stray too far into the process.
- Train your deciding officers to make decisions, based only on the facts, which are non-biased and non-judgemental.
Our training from CMP Resolutions has been a very positive experience, and we are confident that the training has helped us to speed up and professionalise our approach to investigating. Not only have our investigators gained in confidence and skills, but our investigations are already moving more quickly and our processes have been streamlined following input from the trainers. We would recommend CMP Resolutions to any organisation wanting to develop the skills and professionalism of their investigators. Patient Feedback Manager, Abertawe Bro Morgannwg University Health Board
Option 2. Refer the responsibility for the fact-finding investigation outside your organisation
- Bring in an external organisation to carry out the interviews, evidence evaluation and report writing (including recommendations, if you like). Outsourcing single investigations that are high-priority, complex, sensitive or high risk can reduce your ET referral rate, and can complete an investigation in as little as 6 working days.
- Set up a call-off contract – London Underground saved over £3,000,000 in case management costs by outsourcing only their bullying and harassment investigations.
The average time taken to complete a case went down 115 days; and an analysis of case management costs showed a drop from £9 million to £6 million over 4 years. Outsourcing this service to CMP resulted in a gross saving of more than £3 million in the first 4 years! Senior HRPB, London Underground