(Employment Appeal Tribunal)
The EAT has rejected a claim that an employer's disciplinary investigation was unreasonably detailed, and held that the employee's subsequent dismissal for gross misconduct was fair.
Ms Pillar was a nurse practitioner, whose role involved triaging members of the public to determine their medical priority. She was dismissed for gross misconduct following an incident where she sent a patient who had experienced a heart attack to an out of hours GP, rather than calling 999. Ms Pillar brought proceedings in the ET, alleging that her dismissal was unfair because the investigation report, on which the employer had principally based its decision, included reference to two previous incidents which had not been treated as disciplinary matters. The Tribunal agreed with Ms Pillar, finding that those prior incidents should have been excluded from the investigation report. NHS 24 appealed.
The EAT found the ET's approach to be inconsistent. It held that a too-detailed investigation would not fail the test of whether the investigation had been adequate unless it were overzealous or otherwise unfair. The judge emphasised that disciplinary procedures should involve a two-stage process: the investigatory officer's task is to gather all relevant material to enable the disciplinary officer to reach a decision based on all pertinent factors. In this case, excluding material relevant to Ms Pillar's competence (and public safety) would have been a serious omission. Whilst Ms Pillar had not been subject to prior disciplinary proceedings, this did not on the evidence create any expectation that future incidents would be treated less seriously.
Although the facts of this case were unusual, the decision both clarifies the extent to which previous conduct can and should be taken into account in a disciplinary hearing; and reiterates the rule that employers remain subject to the "range of reasonable responses" test when deciding whether a disciplinary investigation was reasonable.