In NHS 24 v Pillar (UKEATS/0005/16) the Employment Appeal Tribunal (EAT) considered whether a disciplinary investigation had been too thorough.

Facts

Ms Pillar was employed by NHS 24 as a nurse practitioner. Her role involved taking telephone calls from members of the public and triaging them by asking questions to decide their medical priority and the appropriate clinical outcome. She was dismissed for gross misconduct following a Patient Safety Incident (PSI) in December 2013 after she had failed to ask the appropriate questions, which resulted in her referring a patient who had suffered a heart attack to an out-of-hours GP service instead of calling 999. Ms Pillar had, in the past, been responsible for two other PSIs. However, they were both dealt with by way of providing a development plan and additional training rather than disciplinary action. Details of these two incidents were included in the investigatory report for the purpose of the disciplinary hearing that led to Ms Pillar's dismissal.

Employment tribunal decision

Ms Pillar brought an unfair dismissal claim in the employment tribunal (ET) and argued that it was unfair for the investigating officer to have included the earlier PSIs when they had not led to disciplinary action.

The ET held that, although the employer was entitled to treat the latest PSI as gross misconduct in view of the risk to patients, and that a dismissal was justified, the dismissal was procedurally unfair because it was unreasonable for the employer to consider the previous incidents when making its decision. The ET considered that the employee's actions had contributed to her dismissal and reduced her compensation by 70%.

NHS 24 appealed the decision to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal decision

The EAT allowed the appeal and substituted a decision that the dismissal had been fair.

The EAT referred to the test laid down in the case of British Home Stores Ltd v Burchell [1978] IRLR 379, which sets out that in order for a dismissal to be fair an employer must believe an employee is guilty of misconduct, there must be reasonable grounds for believing it and the decision must follow a reasonable investigation. The EAT was unaware of any case in which it had been argued that an investigation failed the Burchell test because it included too much information.

Ms Pillar argued that if an expired warning cannot be a determining factor in a decision to dismiss, then surely conduct not treated as a disciplinary matter at all could not be a factor either. The EAT held that the expiry of a formal warning gave the employee a "false expectation" that it would no longer be a determining factor in future disciplinary action. However, in this case no expectation had been created as to whether the earlier PSIs would or would not be relevant to a future disciplinary investigation.

The EAT also held that because the ET had found that the decision to dismiss was within the band of reasonable responses, it was perverse that the ET should then conclude that the dismissal was procedurally unfair based on the fact that Ms Pillar had not been warned at an earlier stage of any likely consequences stemming from the earlier PSIs. The EAT held that the ET had failed to explore the gravity or context of this procedural defect.

This decision clarifies the extent to which past conduct – which has not been the subject of disciplinary action - can be taken into account by an employer when deciding whether to dismiss. The fact that the earlier incidents were addressed solely through training and development did not, in the EAT's view, create any expectation that future incidents would not be regarded more seriously. The employer had been right not to withhold the earlier information from the investigation report. It is for the investigator to put all relevant information in front of the disciplinary hearing and for the decision-maker to decide what to do with it.

An ET is more likely to challenge an inadequate investigation than an overly thorough one. It is then for the ET to decide whether the degree of reliance on any previous misconduct, including expired warnings, was reasonable in all the circumstances.