EAT

Who shall set a limit to the influence of a Human Being?

— Waldo Emerson

Had the poet been around today, he might have mused over the influence of Human Resources (‘HR’) managers.

In this blog we take a look at another Employment Appeal Tribunal (‘EAT’) case and reflect on how the events and decisions made echo the experiences of too many disabled former officers.

The focus is on the dubious and what surely must be unlawful practice by some HR employees of exerting undue influence on the regulatory decisions made by Selected Medical Practitioners (‘SMPs’).

We could also say that some SMPs are more than willing to be influenced.

The case we briefly explore is the 2015 hearing of Ramphal v Department for Transport UKEAT/0352/14.

Here is the full report:

Mr Ramphal was an employee of the Department of Transport. There was a disciplinary hearing to investigate possible misconduct in relation to the expenses Mr Ramphal had claimed and his use of hire cars.

Mr Goodchild, a manager with the Department of Transport, was appointed to conduct the investigation. Mr Goodchild was supposed to act as an independent and disinterested party, and he initially produced a draft of his findings of his investigation report, including his opinion that the misuse of hire cars was “not deliberate” and that the explanations given by the claimant in respect of expenditure on petrol were “plausible”. Mr Goodchild’s first report concluded that Mr Ramphal was guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct.

There then followed meetings of HR with Mr Goodchild as a result of which the report was amended with the findings in favour of Mr Ramphal removed. The report now concluded that Mr Ramphal’s conduct amounted to to gross misconduct and recommended that he be summarily dismissed.

The matter went to an Employment Tribunal, which held that Mr Ramphal had been fairly dismissed.

Mr Ramphal appealed on grounds that the investigating officer’s recommendations had been heavily influenced by input from Human Resources. The advice Mr Goodchild was given by HR was not limited to matters of law and procedure, and level of appropriate sanctions with a view to achieving consistency, but extended to issues of the claimant’s credibility and level of culpability.

The Employment Appeals Tribunal found in favour of Mr Ramphal, stating that employment judge had failed to apply the decision of the Supreme Court in Chabra v West London Mental Health NHS Trust [2013], which set out guidelines on the role of HR in disciplinary investigations. In particular, HR’s advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer.

A vitally important principle was drawn on by the EAT, namely that an employee against whom allegations of misconduct are made has an implied contractual right to a fair process. By interfering with what should have been an impartial decision by Mr Goodchild, the fairness of the investigation and hearing had been undermined.

This principle translates readily across to the role of the SMP, who is an appointed medical professional tasked by a Police Pension Authority (‘PPA’) to make a decision concerning the pension of a serving or retired officer.

Yet we hear, on a regular basis, accounts describing how HR employees interfere with what should be an independent and impartial decision. There appears to be a complete lack of understanding in some forces that there is a firm line between offering a SMP advice on the law and procedure and inserting HR into the actual decision-making process.

By way of example, and this is a very common occurrence, HR gather in information, often in contravention of data protection law, on an individual’s financial and other circumstances. They then present the SMP with often ludicrous opinion on what jobs and what earnings the individual might be capable of. In this way they influence the SMP’s decision on the individual’s degree of disablement.

Such practice is appalling, but worse examples exist. We know of one case where a HR manager colluded with a SMP to alter the decision of a Home Office appointed medical referee. The referee had decided a certain level of degree of disablement, and this decision was altered to a lower level of disablement, and thus a lower level of pension payment.

We also know of another instance where a HR manager ‘advised’ a SMP to follow their recommendation that the injury pension of a disabled former officer be reduced from the highest level of payment to the lowest.

In a Northwest force, they took things even further, and had an civilian employee deciding the degree of disablement of individuals and then having the SMP put his name to a decision which the SMP had no part in forming.

The Regulations require that a PPA refer ‘for decision’ to a duly qualified medical practitioner certain matters. Clearly, when a PPA hands that responsibility to a SMP it must step back and let the SMP form their own opinion, without influence and without interference. This simply is not happening in some forces.

IODPA believes it is time all police pension authorities take a close look at the processes which HR departments have constructed around the way in which medical decisions are made. Police Pension Authorities  need to take steps to ensure HR managers and SMPs are better informed and instructed on the limits of advice and how to prevent interaction between SMP and HR dragging them down into a quicksand of unlawful unfairness caused by undue influence.