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A step too far for the Human Resources department
On a number of occasions, when advising clients about disciplining employees, we see the roles of human resources and management are confused, writes Alistair McArthur, head of the employment team, Herrington & Carmichael
In the case of Ramphal v Department for Transport, Ramphal was employed by the Department for Transport (DFT) as an aviation security compliance inspector. An investigation was launched by the DFT into suspected misconduct by Ramphal about his expenses claims. Ramphal’s manager, Goodchild, was appointed to carry out the investigation. He was inexperienced in dealing with disciplinary proceedings and, consequently, relied heavily on the advice and guidance of the DFT’s human resources department when writing his investigatory report.
Goodchild’s initial view was that Ramphal had committed misconduct and the appropriate
sanction was a final written warning. However, after consulting further with human resources, he decided to summarily dismiss Ramphal on grounds of gross misconduct.
Upon being dismissed, Ramphal brought a claim against his employer for unfair dismissal. The Employment Appeals Tribunal (EAT) found that the changes in Goodchild’s report following human resources’ involvement were considered ‘disturbing’ and so striking as to give rise to an inference of improper influence. The EAT considered that such influence exceeded the human resources department’s role in providing advice and, accordingly, it referred the matter back to the Tribunal for further consideration.
It is important that human resources advisers understand the extent of their involvement in a disciplinary. If they become too involved in the decision- making process, this may lead to dismissals being found to be unfair. This could expose an employer to unwelcome claims for compensation.
This may be a difficult balance for human resources advisers who want to use their experience and expertise to do the best for their business. As solicitors, we benefit from legal professional advice privilege. This means that normally the advice given cannot be relied upon as part of tribunal or court proceedings. This is not a luxury available to human resources advisers, whose advice is
The Modern Slavery Act: what does it mean for your business?
What is the Modern Slavery Act (MSA) and how do you know if your organisation needs to take action? Charlotte Mortlock, an employment specialist at Penningtons Manches LLP‘s Reading office, has the answers
The MSA is now in force and will require almost immediate action by some organisations. It aims to combat crimes of slavery and human trafficking by creating criminal offences and powers of enforcement. Many of us would be forgiven for thinking that this is a wider problem and not something UK businesses can influence. The Government disagrees.
The MSA says that businesses have a role to play. However, the mandatory obligations only affect large commercial organisations with a global turnover above £36 million. Such organisations are now required to publish an annual statement about modern slavery for each financial year which ends on or after March 31, 2016.
The detail of the statement isn‘t set in stone; it is up to you to
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decide what it says. However, it should disclose what steps your organisation has taken to ensure that human trafficking is not taking place within the business. In theory, the statement could say that the organisation has taken no such steps, but clearly that wouldn‘t be advisable from a reputational point of view.
It‘s one thing for an organisation to consider whether such crimes exist within their own business, but the obligation extends to comment upon your supply chains too. The concept of a supply chain is broad – it is anything which enables the organisation to provide the service to its end user, be that by outsourcing or subcontracting eg cleaning or catering services. Organisations need to consider how they go about conducting the necessary due diligence in their supply chain; standard terms could be introduced with suppliers to ensure they are aware of your organisation‘s stance on modern slavery.
With reputation in mind, it is also worth considering implementing a policy on the MSA which all staff are aware of. If you have trade
THE BUSINESS MAGAZINE – THAMES VALLEY – FEBRUARY 2016
disclosable as part of proceedings. Of course, we also cannot make decisions for our clients and ultimately, at times, these tough decisions still have to be made.
For any questions relating to the issues discussed in this article, contact me, details below.
Details: Alistair McArthur 0118-9774045
unions in place, they may need to be consulted about such a policy. Staff should also be trained on the subject as part of the organisation‘s general corporate social responsibility and to assist in implementing the policy. A dedicated individual from management should be responsible for ensuring compliance with the policy and it should be clearly communicated to all staff who this individual is.
Clearly a moral obligation exists in relation to preventing modern slavery and human trafficking. All organisations, large and small, can play their part in ensuring it does not exist within their organisation, whether the obligations under the MSA apply to their business or not.
Details: Charlotte Mortlock 0118-9822640
charlotte.mortlock@
penningtons.co.uk www.penningtons.co.uk
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