Case update (1): Unfair dismissal – Investigation

Summary:  Can including too much information in an investigation report, in particular previous incidents which have not been the subject of disciplinary action, mean that a dismissal is unfair?

No, says the EAT in NHS 24 v Pillar available here.

Facts: The employee, Ms Pillar, was employed by NHS 24 (Scotland’s national telehealth organisation) 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.

Ms Pillar 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.

The investigation report which led to the dismissal for gross misconduct included details of two earlier PSIs.  One of those PSIs was very similar to the PSI incident for which she was dismissed, as it also involved incorrectly referring a patient with cardiac symptoms to an out of hours GP service. The circumstances of the other previous PSI were different, but did involve concerns about the employee’s triage decision making. However, both these previous PSIs were dealt with by way of providing a development plan and additional training rather than disciplinary action.

Ms Pillar brought an unfair dismissal claim in the Tribunal 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 Tribunal held that, although the employer was entitled to treat the latest PSI as gross misconduct in view of the risk to patients, the dismissal was procedurally unfair because it was unreasonable for the employer to include the information about these incidents themselves (as opposed to just the fact that training had been undertaken) in the investigation and this rendered the dismissal unfair as the investigation was not reasonable in all the circumstances.

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

The EAT allowed the appeal and held that the dismissal had been fair.  The EAT referred to the test for fair dismissal which is that in order for a dismissal to be fair an employer must (i) believe an employee is guilty of misconduct (ii) have reasonable grounds for believing it and (iii) the decision must follow a reasonable investigation.

The EAT was unaware of any case in which it had been argued that an investigation failed this 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 Tribunal had found that the decision to dismiss was within the band of reasonable responses, it was perverse that the Tribunal should then conclude that the dismissal was procedurally unfair based on the fact that Ms Pillar had not been warned at an earlier stage that the earlier PSIs could be referred to in a later investigation. The EAT held that the Tribunal had failed to explore the gravity or context of this procedural defect.

Implications:  This decision is reassuring for employers that including previous issues in an investigation report does not render a dismissal unfair. The EAT has confirmed that the test for a fair dismissal focusses on whether the investigation was sufficient – an employee cannot claim that an investigation report contains too much.

This case is also a useful reminder that the key for fairness of dismissal will be what the decision-maker took into account in their decision regarding previous events or warnings, not what was included at the investigative stage.

It is for the investigator to put all relevant information in front of the disciplinary hearing and for the decision-maker i.e. the manager chairing the disciplinary hearing, to decide what to do with it. Therefore it would not generally matter if the investigation report did contain some unnecessary material, so long as the manager did not rely on it to the employee’s detriment.

The case is also useful to employers in that it indicates that past conduct can be taken into account by an employer when deciding to dismiss, even if disciplinary action was not taken at the time. In this case, 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.

However, employers should exercise caution when relying on previous incidents which are not ‘live’ warnings.  The very fact that, in this case, referring to earlier incidents led to an initial Tribunal finding of unfair dismissal, highlights that employers should be careful when relying on information about previous historic incidents in any decision.

Given the complexity in deciding whether it is fair to take into account previous incidents when deciding to dismiss, please do take advice from us at Menzies Law on 0117 325 0526 if you are faced with any uncertainty on this.