Employment Law Snapshot

Welcome

Welcome to Issue 5 of my Employment Law Snapshot.

As many of you will probably know, I’m a big fan of the sport of egg chasing. As such, I have been glued to the TV over the last few weeks watching as many of the World Cup games as possible. Over the years, I have made many friends with fellow egg chasing clients, many of whom support Scotland, Wales or Ireland.

Needless to say, the ‘banter’ between us over the last few weeks has been pretty robust as our respective teams have experienced the highs and lows of the tournament. However, after last week’s debacle by the English team, it’s fair to say that I have suffered the most in the exchange of jokes between my rugby chums.

In the true spirit of sportsmanship, I rather stupidly agreed that if England lost against Australia (which unless you live on another planet or like ‘soccerball’ – they did) I would publish one anti English Rugby joke suggested by my clients in this e-shot, as a forfeit.

Unsurprisingly, there was only one joke out of about fifteen that was suitable for publication, so here it is:

“‘What do you call an Englishman holding the Rugby World Cup? Answer: The engraver.”

My punishment has been served.

On with the law.

The Legal Stuff

This week’s case is called Ramphal v Department for Transport.

Mr Ramphal was employed by the Department for Transport (‘DFT’). DFT undertook an investigation into a possible case of misconduct by Mr Ramphal in relation to his expenses.

Mr Goodchild was asked to investigate the allegations. However, as he did not have much experience in carrying out disciplinary proceedings he received advice from the in-house HR team.

Although the initial investigation report produced by Mr Goodchild was partly critical of Mr Ramphal, it contained a number of favourable findings, including the fact that the misuse of expenses was not deliberate and that Mr Ramphal’s explanations were “consistent” and “plausible”. As such, Mr Goodchild’s recommendation was a finding of misconduct against Mr Ramphal and a sanction of a final written warning.

However, following further communications between Mr Goodchild and the HR team over a period of time, the favourable comments were removed from the report and replaced with critical comments and the recommended sanction changed to summary dismissal for gross misconduct.  In light of the changed report, Mr Ramphal was dismissed and so he brought a claim for unfair dismissal.

During the Employment Tribunal proceedings, evidence came to light that suggested that the HR team might have advised on factual and legal issues that went beyond matters of law and procedure.

However, Mr Ramphal lost his claim because the Employment Judge concluded that the decision to dismiss him was still within the band of reasonable responses open to a reasonable employer.

Mr Ramphal appealed to the Employment Appeal Tribunal.

Mr Ramphal won.

The central issue that was considered by the EAT was whether the Employment Judge had properly considered whether the HR team had inappropriately lobbied Mr Goodchild about Mr Ramphal’s guilt and what sanction to impose.

The EAT took into account an earlier decision by the Supreme Court which essentially said that the report of an investigating officer for a disciplinary enquiry must be the product of their own investigations.

The EAT said that Mr Goodchild’s change of approach after the involvement of the HR team was “disturbing” and it took the view that the HR team might have involved themselves on the issue of Mr Ramphal’s guilt. The EAT went on to say that the changes of opinion were so significant that they gave rise to an inference of improper influence by the HR team and therefore, the Employment Judge in the original Employment Tribunal should have given clear reasons for accepting that there had not been any inappropriate influence. As such, the case was remitted back to the Employment Tribunal for further consideration.

This case is really important for HR teams because they are understandably an important part of the disciplinary process. The moral of the story is that HR advisers have to be careful that they limit their advice to questions of law, procedure and process. If they overstep the mark and start to stray into areas of culpability or inappropriately influence the conclusions of a disciplinary investigation it could potentially compromise the fairness of the process and result in an unfair dismissal.

And Finally…

Do you ever get the feeling that your colleagues at work are faking their cheerful smile when they are given a job to do? Well, if you do, you might want to consider following in the footsteps of some Chinese companies with their rather novel idea of allowing their employees to wear masks at work!

Believe it or not, some Chinese companies encourage their workers to wear a mask to work as part of a “relaxation” day, so that they can pull whatever facial expression they want without their managers knowing what it is. The rationale behind this idea is to give staff a day to de-stress and not feel as if they have to put on smile when they don’t want to.

Apparently, the masks can even be worn when dealing with clients and customers!

So, the next time you come for a client meeting with me, please don’t be overly concerned if I turn up wearing my favourite Batman mask… That said, after a bit of an ‘issue’ last week, I think that I’m going to have to seriously reconsider whether it gives the right impression in the Employment Tribunal….

Until next time.

Darren