The decision of the ECJ in the Spanish case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14) which has grabbed much media
The decision of the ECJ in the Spanish case of Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (c-266/14) which has grabbed much media attention will not have come as a surprise to many of our readers who may have been following our reports. Rarely has the court not followed the opinion of the Advocate General. Much of the media attention has focussed on care workers and the additional costs employer face if they do not pay them for travel between appointments. However, the case is not about care workers but about workers who do not have a fixed or habitual place of work and who as part of their work travel each day between their homes and the premises customers. The majority of employers treat such travel time as non-working time regardless of whether the employee is home or office based. However, the ECJ has now clarified the position by finding that for workers who do not have a fixed or habitual place of work the time spent travelling each day between their homes and the premises of the first and last customers designated by their employer is "working time" for the purposes of the Working Time Directive. This means that not only are such employees entitled to be paid for this time, it must be taken into account when calculating the average number of hours an employee may work in a reference period.
Another area where clarity is key is unfair dismissal. It is not unusual for an investigating or disciplinary officer to seek guidance from the HR department as to how they should conduct an investigation into an employee's conduct or advice on the presentation of their report or the sanctions open to them under a disciplinary procedure. However, in the case of Ramphal v Department for Transport reported this week it was clear that HR went further than providing impartial support and had in fact heavily influenced the decision that the employee should be summarily dismissed for gross misconduct. Mr Goodchild who was both the investigating officer and the disciplinary officer sent his draft report to HR. This draft contained a number of favourable findings in relation to Mr Ramphal. Mr Goodchild found that Mr Ramphal's conduct was not deliberate and found the explanations given to be "consistent" and "plausible" and that Mr Ramphal had made a persuasive argument that he had not acted wrongly and recommended a finding of misconduct and a sanction of a written warning. There then followed six months of communications between HR and Mr Goodchild with various drafts and suggested amendments by HR which resulted in favourable comments being removed and replaced with critical comments. The final report found the employee to have committed gross misconduct, and recommended immediate dismissal.
The EAT allowed the appeal against a decision of an employment judge that the employee had been fairly dismissed finding that the employment judge had failed to follow the guidelines given in the case of Chhabra v West London mental Health NHS Trust which was decided by the Supreme Court in 2013. In the Chhabra case Lord Hodge expressed the view that while it was not illegitimate for an employer to seek advice on questions of procedure, or the presentation of a report "to ensure that all necessary matters have been addressed and achieve clarity" where alterations had been made to an investigatory report that went beyond clarification, the result was that the report was no longer truly the product of the investigating officer. The EAT found that Mr Goodchild had been heavily influenced to change his decision by HR and set aside the decision of unfair dismissal. The case was remitted back to the employment tribunal to consider the matter again in the light of the Chhabra case.
These decisions do not mean that HR cannot advise on the sanctions open to the decision maker under a disciplinary procedure or to advise whether further investigations need to be undertaken if, for example, the investigating officer or decision maker is unsure about a particular event or matter. Neither does it mean they cannot suggest amendments to a report or outcome letter to ensure everything has been covered or to give greater clarity and understanding. However, unless there is an issue of consistency that needs to be pointed out to the decision maker, HR should not stray into the area of culpability, this is for the person who has conducted the investigation or who is responsible making the decision on the appropriate sanction.
While we do not know the evidence that was given by Mr Goodchild, it is more than likely he was cross examined on his findings in the report and why he came to the conclusion he did having regard to the explanations given by Mr Ramphal. At this point everything would have started to unravel and it became clear it was not Mr Goodchild's decision as to the appropriate sanction but HR's. We would be surprised if the Employment Tribunal did not reverse its decision and find the dismissal was in fact unfair.
Another area where clarity is key is unfair dismissal. It is not unusual for an investigating or disciplinary officer to seek guidance from the HR department as to how they should conduct an investigation into an employee's conduct or advice on the presentation of their report or the sanctions open to them under a disciplinary procedure. However, in the case of Ramphal v Department for Transport reported this week it was clear that HR went further than providing impartial support and had in fact heavily influenced the decision that the employee should be summarily dismissed for gross misconduct. Mr Goodchild who was both the investigating officer and the disciplinary officer sent his draft report to HR. This draft contained a number of favourable findings in relation to Mr Ramphal. Mr Goodchild found that Mr Ramphal's conduct was not deliberate and found the explanations given to be "consistent" and "plausible" and that Mr Ramphal had made a persuasive argument that he had not acted wrongly and recommended a finding of misconduct and a sanction of a written warning. There then followed six months of communications between HR and Mr Goodchild with various drafts and suggested amendments by HR which resulted in favourable comments being removed and replaced with critical comments. The final report found the employee to have committed gross misconduct, and recommended immediate dismissal.
The EAT allowed the appeal against a decision of an employment judge that the employee had been fairly dismissed finding that the employment judge had failed to follow the guidelines given in the case of Chhabra v West London mental Health NHS Trust which was decided by the Supreme Court in 2013. In the Chhabra case Lord Hodge expressed the view that while it was not illegitimate for an employer to seek advice on questions of procedure, or the presentation of a report "to ensure that all necessary matters have been addressed and achieve clarity" where alterations had been made to an investigatory report that went beyond clarification, the result was that the report was no longer truly the product of the investigating officer. The EAT found that Mr Goodchild had been heavily influenced to change his decision by HR and set aside the decision of unfair dismissal. The case was remitted back to the employment tribunal to consider the matter again in the light of the Chhabra case.
These decisions do not mean that HR cannot advise on the sanctions open to the decision maker under a disciplinary procedure or to advise whether further investigations need to be undertaken if, for example, the investigating officer or decision maker is unsure about a particular event or matter. Neither does it mean they cannot suggest amendments to a report or outcome letter to ensure everything has been covered or to give greater clarity and understanding. However, unless there is an issue of consistency that needs to be pointed out to the decision maker, HR should not stray into the area of culpability, this is for the person who has conducted the investigation or who is responsible making the decision on the appropriate sanction.
While we do not know the evidence that was given by Mr Goodchild, it is more than likely he was cross examined on his findings in the report and why he came to the conclusion he did having regard to the explanations given by Mr Ramphal. At this point everything would have started to unravel and it became clear it was not Mr Goodchild's decision as to the appropriate sanction but HR's. We would be surprised if the Employment Tribunal did not reverse its decision and find the dismissal was in fact unfair.