The claimant worked as a nurse providing telephone advice to patients. She was dismissed for misconduct following a "Patient Safety Incident" in which she did not take the appropriate action in relation to a patient who had suffered a heart attack.
The investigation report into the incident included details of two previous Patient Safety Incidents in which the claimant had been involved. As these had not resulted in disciplinary action, but were treated as performance issues for which the claimant received further training, the tribunal found that it was unnecessary to refer to them in the investigation report. Doing so rendered the investigation outside the range of reasonable responses and the dismissal unfair.
The employer successfully appealed against that decision. The EAT accepted that investigations are generally open to challenge on the basis that they are insufficiently thorough. Here there was no suggestion that the investigation was not comprehensive; it would be novel to find that an investigation was unreasonable because it gathered too much information as opposed to too little.
A distinction also had to be drawn between including information in an investigation report and relying on past conduct to justify a dismissal. This was not a situation in which an expired warning had been taken into account when an employee had a reasonable expectation that it would no longer be relevant. In the claimant's case earlier incidents had been treated as development issues; she could have no expectations about whether they would be relevant or irrelevant to any investigation into future matters.
The tribunal accepted that the potential risk to patient safety meant that the decision to dismiss was within the band of reasonable responses on the basis of the material before the dismissing officer and this was not challenged by the claimant. The decision to dismiss was fair and the tribunal was in error to find that the contents of the investigation report made it unfair.