The Employment Appeal Tribunal (EAT) has determined that an employer was entitled to take into account previous incidents when dismissing for gross misconduct, even where such earlier conduct had not led to disciplinary action.

To ensure a fair dismissal on grounds of conduct, an employer must:

  1. Believe the employee to be guilty of misconduct;
  2. Have reasonable grounds for that belief; and
  3. Have carried out as much investigation as was reasonable to determine that belief.

An employment tribunal will also consider whether a decision to dismiss was within the “band of reasonable responses” open to the employer in the circumstances.

An employer must exercise caution when taking into account previous conduct in making its decision, particularly where such conduct resulted a disciplinary warning which has since expired.

In NHS 24 v. Pillar, the issue was whether the employer was entitled to consider previous similar incidents which had not resulted in the employee receiving additional training, but no formal warnings.

Ms Pillar was a nurse practitioner employed to triage calls on the NHS helpline. Her role was field calls from members of the public seeking advice, ask questions to determine their medical priority and recommend a course of action.

She was dismissed for gross misconduct following a patient safety incident in December 2013, where she sent a patient who had suffered a heart attack to an out-of-hours clinic, rather than treating it as an emergency. She had been involved in similar patient safety incidents in 2010 and 2012. However at this time the incidents were not treated as misconduct and she was instead put on a development plan and provided with additional training.

The investigatory report in relation to the 2013 incident included details of the events in 2010 and 2012, by way of background information. Based on that report, the employer decided to dismiss Ms Pillar for gross misconduct.

Ms Pillar argued that her dismissal was unfair because the investigatory report should not have included details of prior incidents which had not led to disciplinary action.

The Employment Tribunal agreed with Ms Pillar, finding that whilst the employer had been entitled to treat the latest incident as gross misconduct, the inclusion of the details regarding the previous history within the investigatory report rendered the dismissal procedurally unfair. Her compensation was, however, reduced by 70% to reflect her contributory fault.

NHS 24 appealed the decision to the Employment Appeal Tribunal.

EAT decision

The EAT upheld the appeal and determined that the dismissal was fair, in all the circumstances.

The relevant part of the test insofar as it related to the appeal, was step 3 which involved a consideration of whether the investigation had been sufficient. The EAT considered that to agree with the representations put forward by Ms Pillar would lead to an outcome that the inclusion of too much information rendered the investigation unreasonable.

The EAT found this to be perverse. Although the decision maker should only take into account previous incidents where it is fair and appropriate to do so, the mere fact that such information is placed before them in an investigatory report, will not in itself render an otherwise fair dismissal unfair.

Ms Pillar also argued that if an employer should not rely on expired warnings in a decision to dismiss, then conduct not treated as a disciplinary matter should not be relied upon either. However, in the EAT’s view the employer’s handling of the prior matters did not create any expectation that similar future issues would not be treated more seriously. In any event, the incident in question was sufficiently serious to mean that the termination was within the band of reasonable responses.

Comment

The fairness of taking account expired warnings (or similar conduct that has not led to a formal warning) remains a contentious area and this should be handled very carefully.

However, a distinction should be drawn between including background information that might be pertinent to the issues in an investigatory report and actually relying on that information as the overriding basis for termination.

In all cases, the decision-maker should be clear on what factors they have taken into account when making a decision to dismiss. If they have been swayed by previous incidents that did not result in disciplinary action (or in relation to which any previous warnings have expired), they should make this clear and explain why, in the circumstances, they considered it was appropriate to do so. Equally, if the investigation report includes such information but the decision-maker made a conscious decision not to include it in their deliberations, this should also be made clear.

An employment tribunal will not substitute its own decision when considering the fairness of a dismissal, but it will look closely at the thoroughness of the investigation and the underlying rationale. As a general rule, a high standard of investigation and procedure is expected of employers, when dealing with potential misconduct cases.