It is a well-known tenet of employment law, that an employer must carry out a reasonable investigation before dismissing an employee for misconduct, in order for that dismissal to be fair. The recent decision handed down by the Employment Appeal Tribunal (“EAT”) in NHS 24 v Pillar UKEATS/0005/16 addressed the issue of whether the employer’s disciplinary investigation had, in effect, been too thorough, by taking previous incidents that had not been treated as disciplinary offences at the time into consideration. In this case the EAT held that the employer had been entitled to take those incidents into consideration, in light of their relevance to the disciplinary issues to be determined, and the significant risk that would have been posed to patients’ safety had they been ignored. The EAT subsequently held that the employer’s investigation had been reasonable in the circumstances, and that the subsequent dismissal of the employee in question had been fair.

The Claimant, Ms Pillar, was a nurse practitioner at NHS 24 whose work involved taking telephone calls from members of the public and triaging them, by asking appropriate questions, in order to determine their medical priority and the appropriate clinical outcome. She was dismissed by reason of gross misconduct in 2013, following a serious Patient Safety Incident (“PSI”), where her failure to ask appropriate questions had led to her referring a patient suffering a heart attack to an out-of-hours GP instead of calling 999. The Claimant had also been responsible for two earlier PSIs in 2010 and 2012 because of similar failures to triage calls appropriately. However, those earlier PSIs had not led to disciplinary action at the time, though they had led to the Claimant being placed on a development plan under which she was required to attend various training sessions. The subsequent 2013 PSI was, however, treated by the Respondent as gross misconduct and a disciplinary investigation was carried out. Details of the two earlier PSIs were included in the report compiled by the investigating officer for the purpose of the disciplinary hearing, and were taken into consideration by the chair of the disciplinary hearing who subsequently dismissed the Claimant for gross misconduct. The Claimant subsequently brought a claim for unfair dismissal in the Employment Tribunal alleging that, among other things, the inclusion of the earlier two PSIs in the investigative report, when they had not led to disciplinary action, was unfair.

The test for unfair dismissal established in British Home Stores Ltd v Burchell [1978] provides that dismissal for misconduct will be unfair unless at the time of dismissal:

  • the employer believed the employee to be guilty of misconduct;
  • this belief was based on reasonable grounds; and
  • at the time it formed that belief, it had carried out as much investigation as was reasonable in the circumstances.

The Employer’s decision to dismiss must also fall within the range of reasonable responses that a reasonable employer might have adopted in the circumstances – both in respect of the decision to dismiss, and the adequacy of the investigation (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23). Case law has also established that expired disciplinary warnings should not be a determining factor in a decision to dismiss (though they may, in some instances be taken into consideration as relevant background information) (Thomson v Diosynth Ltd [2006] CSIH 5 and Airbus (UK) Ltd v Webb [2008] IRLR 309).

In the first instance, the Employment Tribunal found that the Claimant’s dismissal was unfair. It agreed that the decision to dismiss was itself reasonable, on the basis of all the material included in the investigation report (including the two earlier PSIs) and in light of the risk the Claimant had posed to patients, and that the Respondent had been entitled to treat the Claimant’s conduct as gross misconduct. However, it went on to find that the disciplinary investigation had been unreasonable because it had included details of the previous PSIs (which had not been treated as disciplinary incidents at the time) and that therefore the dismissal was procedurally unfair. In the Tribunal’s view, it would have been relevant to include details of the training the Claimant had undergone as a result of the earlier PSIs, but the details of the incidents themselves should not have been included because they did not give rise to disciplinary proceedings at the time in question. The Tribunal did, however, also decide that the Claimant’s conduct had contributed to her dismissal, and that the amount of compensation awarded to her should therefore be reduced by 70%. The Respondent appealed.

The EAT (Lady Wise, sitting alone) allowed the appeal, and held that the dismissal had been fair.

Lady Wise observed that the test of reasonableness in relation to a disciplinary investigation, as laid out in Burchell, is one of “sufficiency”, that is, whether the investigation has been adequate in the circumstances (when judged by the standards of the reasonable employer). She commented that, in other cases employers have fallen foul of the test of reasonableness where an investigation has been considered too narrow, on the basis of too little information having been gathered. However, there was no case laid before the Tribunal where an employer had fallen foul of the test for gathering too much information, though it was acknowledged that an overzealous or otherwise unfair investigative process could fall foul of the test.

The EAT did acknowledge that the issue of fairness to an employee, when an employer takes into account past misconduct in the decision to dismiss, is a contentious area. The Claimant had argued that, as had been held in Diosynth, an expired warning cannot be a determining factor in a decision to dismiss an employee, and that therefore conduct which was not subject to disciplinary action should not be a factor in a decision to dismiss. However the EAT distinguished this case from Diosynth. In the latter, the expiry of the warning had given the employee a “false expectation” that it would no longer be a determining factor in future disciplinary action, and this had made the subsequent dismissal in reliance on the warning unfair. By contrast, 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, and the employer had been entitled to include relevant background information in the investigation report – particularly in light of the serious risk to patients if this information was excluded. In addition, this background information had not been the sole determining factor in the decision to dismiss.

It was also notable that, in this case, the Claimant had not actually challenged the Tribunal’s decision that the dismissal was reasonable on the basis of the material before the decision-maker. Unless it could be said that the earlier PSIs should never have been a factor in the decision to dismiss, there was no rational basis to exclude details of them from the investigation report.

Lady Wise also highlighted the difference between the investigative stage of a disciplinary process – where it is up to the investigating officer to collate information which is relevant to the disciplinary allegations, and the decision to dismiss – at which stage it is up to the dismissing officer to decide how to treat the information gathered during the investigation and whether dismissal is appropriate in the circumstances. In this particular set of circumstances, the Tribunal had found the decision to dismiss, based on the information to hand, to be reasonable.

In light of this, the EAT held that it had been “inconsistent and perverse” for the Tribunal to conclude that material acknowledged as relevant to the disciplinary investigation should have been excluded from the investigation report, while at the same time finding that a dismissal based on that information was within the band of reasonable responses. The EAT subsequently substituted a finding of fair dismissal.

This case provides useful clarification regarding the reasonableness of disciplinary investigations. It serves as a reminder that it is for the disciplinary investigator to put together all the relevant information, and then for the decision maker to decide what to do with it and what sanction is appropriate. Information that is relevant to the disciplinary issues to be decided should not be withheld from the decision maker – particularly, as in this case, where the omission of such information may have serious consequences (in this instance, for patient safety). This case also provides useful clarification regarding the extent to which past conduct can be taken into account by an employer when deciding to dismiss. Here, the fact that earlier incidents were addressed solely through training and development (rather than disciplinary proceedings) did not preclude them from being taken into consideration as background information in subsequent disciplinary proceedings relating to similar conduct. However past misconduct or expired warnings should still be treated with caution, particularly when deciding on the appropriate disciplinary sanction.


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Thérèse Rankin

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Posted on 18/10/2017 in Legal Updates

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