DISMISSAL – TAKING INTO ACCOUNT PREVIOUS INCIDENTS

Can taking account of too much information in an investigation report, in particular referring to previous incidents which were not subject to disciplinary action, render a dismissal unfair?

Legal background

A dismissal for misconduct will be unfair, unless at the time of dismissal:

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

Furthermore, the employer’s decision to dismiss, as well as the scope of the investigation, must fall within the “range of reasonable responses” that a reasonable employer might have adopted in those circumstances.

Facts

In NHS 24 v Pillar, Ms Pillar was employed by the NHS as a nurse whose duties were to triage the calling of patients based on their medical priority. She was dismissed for gross misconduct for failing to ask appropriate questions and referring a patient who suffered a heart attack to an out-of-hours GP instead of calling 999. This caused a Patient Safety Incident (‘PSI’).

Ms Pillar was responsible for two earlier PSIs of a similar nature, which never led to disciplinary action; instead she was given a development plan and further training.   These earlier incidents were cited in the investigation report.

Ms Pillar lodged an unfair dismissal claim arguing that it was unfair for the investigating officer to have included earlier PSIs when they had not led to disciplinary action.

The tribunal agreed and found the dismissal unfair on the basis that it was prejudicial to include the previous PSIs in the investigation, since they did not result in disciplinary action and Ms Pillar was not aware that further similar incidents were likely to be viewed as gross misconduct.

NHS 24 appealed the decision.

Decision

The EAT held the dismissal to be fair. They observed the test of reasonableness in relation to a disciplinary investigation is one of “sufficiency”; in other words, whether the investigation was adequate in the circumstances, when judged by the standards of a reasonable employer.  The EAT noted that as long as the investigation was not “overzealous or unfair”, it will not fail the test. An investigation cannot fail because it includes too much information.

The EAT acknowledged that the issue of fairness to an employee when taking into consideration past misconduct is contentious. However, in this case, Miss Pillar could not have been said to expect the previous warnings to have expired and no statement was ever made to her as to whether they would or would not be relevant to any future disciplinary investigations. Further, NHS 24 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 not included. In addition, the background information had not been the sole determining factor in the decision to dismiss.

Comment

The decision clarifies that past conduct can be taken into consideration by an employer when deciding to dismiss. When earlier incidents are only addressed through training and development plans they do not create an expectation that future incidents will not be treated more seriously. The EAT highlighted that the task of the investigator is to put all the relevant information together and it is the decision-maker who will decide how to use it. Reasonableness of an investigation can be put to question only where the relevant information is missing.

As with all cases, the decision is fact sensitive. In this instance, the employee was consistently putting the patients at risk due to her incompetence. Therefore, the seriousness of the situation would possibly have a bearing on deciding if the dismissal based on previous undocumented misconduct was indeed unfair.

As taking into account previous misconduct is contentious, employers should exercise caution when relying on previous incidents.