In NHS 24 -v- Pillar UKEATS/0005/16/JW, the Employment Appeal Tribunal (EAT) decided that an employment tribunal was wrong to find a dismissal unfair because the investigation report included details of previous incidents which had not resulted in disciplinary proceedings. The EAT found that the tribunal's decision perverse given that the tribunal also decided that the dismissal was reasonable based on the information available to the dismissing officer, which included the details of the previous incidents.
The claimant was a nurse practitioner employed by NHS 24 (Scotland’s national telehealth organisation). She was responsible for taking and triaging calls from members of the public. In December 2013, the claimant referred a patient, who had suffered a heart attack, to an out of hours GP service instead of calling 999. She also failed to properly record the content of the call. The respondent treated this as a Patient Safety Incident (PSI) and it led to disciplinary action and the claimant’s dismissal for gross misconduct.
The claimant had been involved in two previous PSIs; one in August 2010 and one in July 2012. The incident in August 2010 was very similar to the PSI under investigation, as it also involved incorrectly referring a patient with cardiac symptoms to an out of hours GP service. The circumstances of the PSI in July 2012 were different, but did involve concerns about the claimant’s triage decision making.
The PSIs in 2010 and 2012 were not dealt with by way of disciplinary action but by training. The claimant was not advised that any repetition would be regarded by the respondent as lack of clinical competence and/or misconduct. The investigation report prepared in relation to the 2013 PSI included details of the earlier PSIs. The claimant argued that it was not appropriate to include the earlier PSIs in the investigation of the 2013 incident.
The tribunal considered guidance from Sandwell & West Birmingham Hospitals NHS Trust -v- Westwood UKEAT/0032/09 that gross misconduct involves either deliberate wrongdoing or gross negligence. It was not suggested that the claimant had engaged in deliberate wrongdoing. The tribunal concluded that it was reasonable for the respondent to regard the claimant’s conduct as gross misconduct when considering all of the circumstances, including the fact that patients were put at risk and the particular employment in question.
The tribunal went on to find that, based on the available material, the decision to dismiss was within the band of reasonable responses; however, it also found that the investigation was not reasonable. The tribunal held that a reasonable investigation into the claimant’s conduct in 2013 would not have included investigation of previous incidents, which had not themselves been the subject of disciplinary proceedings. Details of the training and coaching provided could have been presented to the dismissing officer without reference to details of the previous incidents. Accordingly, the tribunal found the dismissal to be unfair. However, the claimant’s compensation was reduced by 70% to account for blameworthy conduct. The respondent appealed.
Employment Appeal Tribunal
The EAT allowed the appeal. Lady Wise (sitting alone) found that, whilst there may be cases where an overzealous or otherwise unfair investigation process could fall foul of the investigation test established in British Home Stores -v- Burchell 1990 ICT 303, the starting point for the test was the ‘sufficiency’ of the investigation and not the gathering of too much information.
Lady Wise stated that including information in an investigation report should be distinguished from relying on past conduct as a principal reason for dismissal. Whether to rely on the detail of past conduct included in an investigation report was a matter for the dismissing officer. Unless it could be said that the previous incidents should never have been a factor in the decision to dismiss, there was no rationale to exclude details of them from the investigation report. The tribunal had failed to articulate why the details of the previous PSIs should have been withheld from the dismissing officer.
Lady Wise acknowledged that the issue of fairness in taking account of past misconduct is a contentious area. In this case, it was relevant that the claimant had not been given any expectation, either way, as to whether the previous PSIs would be relevant to any future investigation into her conduct. Further, the claimant conceded that details of the previous PSIs were relevant to the issue of how to approach her conduct in 2013 and she did not cross appeal the tribunal’s decision that the dismissal was, on the basis of the information available, within the band of reasonable responses.
Accordingly, it was both inconsistent and perverse for the tribunal to conclude that material acknowledged as being relevant should have been excluded from the report, whilst at the same time finding that dismissal based on that information was within the band of reasonable responses. Lady Wise substituted a finding that the dismissal was fair.
This is an unusual case; it is often argued that an investigation is not thorough enough rather than the other way around. This case suggests that an investigation report will not normally be considered to have failed the Burchell test of reasonableness on the basis that it contains too much information.
However, the outcome does not indicate that disciplinary investigation reports can include details of anything and everything; the information in the report must still be relevant to the issues pertinent to dismissal. Whether to take account of past misconduct in a decision to dismiss is a difficult area and the specific facts of each case will require close examination. Care should be taken when referring to past misconduct which is not the subject of a live warning if it has not been made clear to the employee that this may occur.
There was a strong emphasis in this case on the importance of ensuring that decisions bearing on public safety should be made with reference to all the relevant facts given the need to accurately weigh up the risk to public safety. If the claimant was carrying out a different role, the previous conduct may not have been considered as important.
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