Under UK unfair dismissal law a misconduct dismissal will be unfair if there is insufficient investigation into the relevant facts. But does it make the dismissal unfair if the investigator considers too much information, such as taking into account previous incidents where no disciplinary action had been taken?

Mrs Pillar, a NHS 24 nurse, was dismissed for gross misconduct following a patient safety issue. She had been involved in two previous patient safety issues which were dealt with by giving her a development plan and additional training, rather than as disciplinary issues.

She brought an unfair dismissal claim arguing that it was unfair for her employer to take into account the earlier incidents. The Employment Tribunal concluded that her employer had been entitled to treat the latest incident as gross misconduct given the risk to patients, and that the decision to dismiss was reasonable on the basis of all the material that was before the decision-maker (including the two previous incidents). Despite this finding, the Tribunal said that the dismissal was procedurally unfair because the investigation report included the two previous incidents, which were not disciplinary offences. Also, Mrs Pillar had not been warned at the time that further patient safety issues might be viewed as gross misconduct.

NHS 24 appealed to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal and found that the dismissal was fair. It said that, whilst it is necessary for an employer to carry out as much investigation as is reasonable in order to reach a view that an employee is guilty of gross misconduct, it was not aware of any case where an investigation was found to be unfair on the basis that it included too much information. However, the EAT did acknowledge that an over-zealous investigation might lead to a finding that a dismissal was unfair.

The EAT was also of the view that the fact that the previous incidents were dealt with by giving Mrs Pillar a development plan and additional training, rather than by taking disciplinary action against her, meant that Mrs Pillar had no expectation either way in terms of the details of them being relevant or irrelevant to any future investigation into her conduct.

What this decision means for employers

The question as to whether previous incidents of misconduct should be considered when making a decision to dismiss has been the subject of a number of cases in recent years, particularly in relation to spent warnings. See our case report on Stratford v Auto Trail VR Ltd.

This case makes clear that the mere fact that previous incidents were referred to in the investigation report, does not, on its own, render the dismissal unfair. Whilst an employer may therefore include this sort of information in the report, the decision maker must only take them into account when it is appropriate and fair to do so.