In the United States, so-called workplace investigations can be little more than pre-trial preparation for employers intent upon building a record to justify dismissing a troublesome worker.
It is refreshing to note a recent decision by the London-based Employment Appeal Tribunal (EAT) finding a breach of an implied term of trust and confidence where an agency’s Human Resources Dept. interfered in the outcome of an investigation of employee misconduct.
In Ramphal v. Department for Transport, a manager was investigating alleged misconduct by an aviation compliance inspector, who allegedly filed a false expense report. The manager’s initial report concluded that any abuse was not deliberate. After the manager sought advice from HR, he switched his recommendation that the employee receive a written warning for misconduct to a recommendation that the employee be summarily dismissed for gross misconduct.
The EAT said the lower court erred when it failed to determine whether HR had exerted “improper influence” over the manager’s decision to dismiss the worker
The EAT said a worker facing disciplinary charges and a dismissal procedure “is entitled to expect 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.”
According to the EAT:
“… an investigating officer is entitled to call for advice from human resources; but human resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction….. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct”.
In the United States, most workers who do not belong to unions or receive the protection of an employment contract can be fired for almost any reason – without any cause – as long as the reason doesn’t break an actual law (i.e. discrimination) or a narrowly defined public policy (i.e. protection for whistleblowers). There is no legal requirement that employers treat workers with respect, dignity and fundamental fairness. Of course, employers who are not fair risk significant liability if the worker later files a lawsuit alleging a violation of the law, such as a race or sex discrimination lawsuit.
The Employment Appeal Tribunal is a superior court of record in the United Kingdom that hears appeals from Employment Tribunals in England, Scotland and Wales.
