The EAT has held that an employee was not unfairly dismissed when the investigation report gave details of past misconduct which had not resulted in disciplinary sanctions.

The facts

Mrs Pillar was employed by NHS 24 as a Nurse Practitioner. Her work involved taking telephone calls from members of the public and triaging them, by taking a decision on the most appropriate clinical outcome for the patient in terms of location and time for the next step care. Potential outcomes ranged from giving advice over the telephone to making a 999 emergency call for an ambulance.

Mrs Pillar's dismissal arose out of an incident in 2013 regarded by NHS 24 as a Patient Safety Incident (or a "PSI"). She had been contacted by a man who described symptoms consistent with a heart attack. She referred him to an out of hours GP service. The patient had a heart attack, and a 999 call was made from the out of hours GP service.

There had been two previous PSI incidents involving Mrs Pillar's triage decisions. The first of the PSIs had occurred three years previously, and had been very similar to the incident for which she was dismissed, involving a patient presenting with cardiac symptoms who Mrs Pillar referred to an out of hours GP service instead of making a 999 call. Disciplinary procedures were not instituted, her employer's emphasis had been on learning rather than ascribing blame and she was put on an eight week development plan. The facts of the second incident were different, but involved a bad judgement call, and she was again put on an eight week development plan, rather than disciplinary action. Mrs Pillar was not told, in respect of either incident, what the ramifications of further PSIs might be on her employment.

The investigation report into the 2013 PSI included details of the two previous PSI incidents. These details were taken into account in the decision to dismiss. A tribunal found that the details of these previous incidents should not have been included in the investigation report as these matters had not been the subject of disciplinary proceedings. Information on the training, coaching and support provided following the previous PSIs should however have been included. The tribunal concluded that the investigation was not within the band of reasonableness.

The tribunal also held that Mrs Pillar's conduct had put patients at risk and, on the material put before the decision maker, the decision to dismiss was within the band of reasonable responses.

However, the tribunal found that the dismissal was unfair because the investigation was not within the band of reasonableness.

The tribunal also concluded that the procedure adopted was not reasonable because it had not been made clear to Mrs Pillar in the development plans that her conduct in the 2013 PSI would be considered gross misconduct. Separately, therefore, the dismissal was unfair because of this lack of clarity, which was a procedural error.

Mrs Pillar's basic and compensatory awards were reduced by 70% because she had contributed to her dismissal by her blameworthy conduct.

NHS 24 appealed to the EAT, which allowed the appeal, and substituted a decision that the dismissal had been fair.

The EAT judge said that an investigation which contained too much information, did not necessarily fail the test of reasonableness, though there are situations where an over-zealous investigation might do so.

The judge acknowledged that the issue of fairness to an employee in taking into account past misconduct in the decision to dismiss is a difficult area. However, the tribunal had decided that the decision to dismiss, based on the evidence before the decision maker, was fair. It was therefore inconsistent and perverse of the tribunal to find that the relevant material should have been excluded from the report. Unless it could be said that the earlier PSIs should never have been a factor in the decision to dismiss, there was no rational basis to exclude details of them from the investigation report.

Mrs Pillar had argued that, as an expired warning cannot be a determining factor in a decision to dismiss, conduct not treated as a disciplinary matter at all could not be a determining factor in the decision. However, the EAT distinguished between expired warnings, where an expectation is created by the expiry of a time limit, and this case, where, because of the way in which the previous PSIs had been dealt with, Mrs Pillar had no expectation one way or another as to whether the misconduct would be relevant or irrelevant to any future investigation into her conduct.

The EAT also considered whether the tribunal had been wrong to find the dismissal procedurally unfair because of the failure to tell Mrs Pillar at an earlier stage of the likely consequences of further PSIs. This tribunal had held that this was a procedural irregularity, and had moved straight to a conclusion that the dismissal was unfair on this basis. The EAT said that the tribunal had been wrong in doing so. The procedural defect should have been analysed within the overall context, including the threat to patient safety, and the potential ramifications of the procedural defects: this was not a case in which the consequence of the procedural error denied Mrs Pillar a chance of putting important mitigatory evidence before the dismissing officer, or where an allegation of bias in the procedure had been made out. Further, a conclusion that an isolated procedural flaw during a period prior to the investigation that led to dismissal was sufficient to render the dismissal unfair ignored the tribunal's own conclusions on other material issues to the extent that it was a perverse conclusion.

What does this mean for employers?

As the EAT acknowledged, the extent to which past misconduct can be taken into account in a decision to dismiss can be contentious. This case is useful for employers, showing that past misconduct which is not the subject of an expired warning can be taken into account. However, employers should tread cautiously: whether or not it will be reasonable to do so will be dependent on the specific circumstances of each case.

NHS24 v Pillar UKEATS/0005/16