HR Guidelines on ‘Meddling in Litigation’

Gareth Walls, Partner at A&L Goodbody, focuses on three cases which highlight the risks faced by employers when HR practitioners and in-house lawyers meddle in the litigation process through, for example, inferences of culpability when dealing with disciplinary matters, improperly influencing the outcome of workplace investigations, and failure to focus on contractual process and application of the law.

View Gareth's video here or see the transcription below:

Disciplinary Tribunal Matters and Internal Issues

We want to talk today about the role of Human Resources, and particularly the role of in-house lawyers in the context of disciplinary tribunal matters and internal issues. And really, we want to see just how difficult that can become, and in doing so, we're going to look at three key cases all of which have gone through the tribunals and courts of England and Wales. And then we're going to look at where those cases take us? And really, in many regards, it's ‘back to basics’, but I think it's worthwhile to consider it in the round.

The three cases then: the first one is going to be Chhabra v West London Mental Health NHS Trust. That's a UK Supreme Court case, citation [2013] UKSC 80. All of these (cases) make for interesting reading, but maybe not just for this session right now.

Breaching Patient Confidentiality

The next case will be Ramphal v the Department for Transport, a UKEAT case [2014]. Most people refer to the Ramphal case as covering all of these issues that I'm going talk to you about today but actually, it's important to note that it (this issue) goes right back to Chhabra. Actually, Chhabra's probably the key case. Both Chhabra and Ramphal have been restated and cited in the most recent case on point, which is Dronsfield v the University of Reading. And, again, that's a UKEAT case.

So, let's go right back to Chhabra. The actual facts of the case we don't need to deal with, but in passing, it was a consultant psychologist who was accused of breaching patient confidentiality in the context of reading and having notes open on a train as he was going to and from work.

When that was reported, and on investigation, the EAT and the Tribunal at the first instance, all concluded that HR became overly involved in the matter to the point where they improperly influenced the investigation and the investigation report. At the conclusion of that (hearing), and the courts were very, very clear that by doing so, the individuals who had overexposed themselves had consequently exposed both the NHS, as their employer, and themselves, as the HR employee and advisor, to significant legal risk. That is the kind of issue that the courts are hot on, and that's the kind of issue that we're trying to avoid today.

In that case, (and it's unusual in Northern Ireland, but all the roles, responsibilities and the structures are there), the employee sought and obtained an injunction against the employer which prohibited any further disciplinary action and ultimately remitted the case back down for further investigation. Now, that's unusual because usually the courts and tribunals will remit it back down to another tribunal for consideration. But in this case, it went right back down to the employer to re-run an entirely new investigation.

The bottom line, as presented in Chhabra, is that the HR department, and by that we can also read into in-house lawyers, should ensure that any advice they give is limited to questions of law, procedure or process. And fundamentally, that advice given does not stray into areas of culpability, and that's where the issue really arises.

The Ramphal Principle

So, the next key case is Ramphal, and this is again the case that everybody talks about… We're calling this 'The Ramphal Principle'.

Again, the facts of the case we don't need to dwell on too much, but it was all about an employee who was dismissed, ostensibly for an abuse of the expense account, and that (dismissal) of itself, is quite legitimate. It's effectively, fingers in the till, white collar crime, from whatever you want to call it, breach of protocol for self-aggrandisement, means to gross misconduct, summary dismissal. No big deal in the facts. But this is all about the process, and again, it was concluded that HR influence was inappropriately used in that matter, and it encouraged and led to a substantive change to the findings of the disciplinary procedure, which moved way beyond process but talked to and commented upon culpability and the level of sanction. In fact, it was a very, very marked change from a position initially of no culpability, no overt abuse or misuse of policy, to gross misconduct, summary dismissal, and a removal. So, absolute chalk and cheese from the first investigation to the ultimate as presented, and the point was made plain by the EAT, inciting Chhabra, that HR and the in-house lawyer had gone far too far in relation to their role. The report must be the ownership of the investigator, and HR and the in-house lawyer must be very careful to limit their advice essentially to law and procedure. Now, you'll recall that these are almost exactly the same words used in Chhabra: law and process, nothing more than that.

But, still you can see that this is a fairly hot area of the law because within a year there was another key case which is the third one I want to reference today which is Dronsfield v University of Reading.

Breach of Process with regards to Sexual Relations

Again, the facts of the case are fairly salacious but not anything we really need to dwell on too much, save to say that this was a university lecturer who had a sexual relationship with one of his students. He failed to report it, in breach of process, and he also continued to supervise her through the remaining years of her degree. But, albeit that this was something which was morally wrong and against the ideals of the university in question, it was not, in and of itself, unlawful. There was never any suggestion that it was an abuse of his position. On investigation, in fact, the female student admitted that she had effectively chased the professor, and equally, it didn't actually lead through to better grades in any way. So, he could, on investigation, argue that this was a perfectly lawful thing. Maybe it didn't comply with some of the bylaws and perhaps it was morally wrong, and interestingly, in the investigation, he put his hands up to all of those points and accepted that what he had done was wrong… ‘it was a one-off event’… ‘it wouldn't happen again’. But, other than that, really, should there have been any culpability as such?

Now, the university took a very, very different view. They actually put two investigators onto it. They also had the input of their HR person and, in addition to that, they put on their in-house lawyers. So, we had four people advising the university about the investigation, the outcome, the disciplinary sanction, etc. And, in a sense, (it's very obvious to say from a legal perspective, and hindsight's a wonderful thing), (there were) far too many cooks involved in this situation!  Far too many people who didn't understand exactly where their role started and stopped. So, blurred lines internally!

One of the investigators was very junior. It was one of their first roles. They deferred to the senior investigator. The investigators, both of them, deferred in turn to the in-house lawyer. The in-house lawyer and HR took a very aggressive perspective in relation to this, and they actively used and abused their own internal policies and procedures. They reflected and accepted that the actual policy didn't accurately deal with a situation like this, but nevertheless, they changed policy and protocol to make it fit the preferred outcome which was a gross misconduct dismissal.

In doing so, it was confirmed in open court that they had altered the investigation report; they had removed the recommended finding. They had also removed any findings which were satisfactory or in favour of the employee in question, and indeed, the sanction itself was completely changed and significantly moved to gross misconduct summary dismissal.

Compromising the Fairness of the Investigation Process

Now, in the EAT findings for Dronsfield, both Chhabra and Ramphal were cited, and the position was confirmed as effectively settled. i.e., if the remit of the Human Resource department is exceeded, the fairness of the process is fundamentally compromised. Now, we have heard before and I'll say it again, that actually, the role of HR and the role of in-house (lawyers) is to focus on process and to focus on application of the law, or the contractual process. It is not to go beyond that.

Now, where do these cases take us? Well, in a sense, it's right back to basics. There's nothing new in this. Every employer running its process should start with its own contractual policy, process, whether it's grievance, disciplinary, investigation, or otherwise. And they're always different between employers, and that's absolutely fine. But certainly, any process should start with an understanding of your contract, and it should start with a basic application of that. Of course, those processes must comply with the statutory basics. If they don't, then we're automatically on the wrong foot and the process is fundamentally flawed.

But let's assume that the statutory basics are reflected in your contractual process. That needs to be applied objectively, consistently, and it must always be updated and checked as against the LRA or the ACAS best practice guidelines. There is obviously a dichotomy between whether or not every employee and employer is obliged to comply with best practice or good practice guidelines, and as a rule of thumb, there is an answer to that in relation to whether you are a public or private sector employer. But, of course, that is a simple start to your own policy before we go off and running.

In-house Lawyers Need to Start and Finish with the Process

If we have in-house lawyers, which are an increasing theme in Northern Ireland, then of course, by all means, we can seek advice from the in-house lawyer. That in-house advice between HR and in-house legal, it needs to dovetail, absolutely. It needs to start with the process, it needs to finish with the process. It does not talk to culpability or sanction because the investigation report must be owned by the investigator, and where there's any impact on that or change to that, then ultimately, in-house lawyers, HR personnel, and the business are exposed to significant risk.

Reporting to the Investigation Unit

So, the bottom line: we have to keep ourselves right. The investigation officer and report must always be the product of the investigating unit. If the power is delegated to them, it must stay with them. HR's assistance and assistance from in-house lawyers should be confined and limited to providing clarification on questions of law and procedure. That's not me talking, that's not even best practice guidelines talking, that is three very significant English cases (talking) which do have application and precedence here in Northern Ireland. So, any more than that, and both you and your employer are unfortunately exposed, and consequently, as I said right at the start, this is all about keeping yourself right and sticking within your process.