October 31, 2017

Unfair Dismissal: Can a Disciplinary Investigation Be Too Thorough?

In NHS 24 v Pillar UKEATS/0005/16, the Employment Appeal Tribunal (EAT) considered the appropriate scope of an employer’s investigation into alleged misconduct in disciplinary proceedings.

Ms Pillar was employed by NHS 24 as a nurse practitioner. Her role involved answering telephone calls from members of the public as part of a triage system and asking questions to determine medical priority and clinical outcome. She was dismissed for gross misconduct following a Patient Safety Incident (PSI) in which she failed to direct a patient describing symptoms of a heart attack to the emergency services. Ms Pillar had already been responsible for two earlier PSIs, neither of which resulted in disciplinary action but were instead dealt with through training. These two earlier PSIs were however included in the investigatory report for the disciplinary hearing which led to her dismissal. Ms Pillar presented a claim of unfair dismissal, arguing that it was unfair for the two earlier PSIs to be included in the investigatory report as they had not led to disciplinary action.

The EAT found that the starting point in determining the extent of an investigation in an unfair dismissal claim is to establish whether the investigation is sufficient. Including too much information is unlikely to render a dismissal unfair, although an “overzealous or otherwise unfair process” may do so. In this case, unless it could have been said that the two previous PSIs should never have been a factor in the decision to dismiss, there was no rational basis to exclude them from the investigation.

The case provides clarification of the extent to which employers can consider past conduct in their decision to dismiss an employee and reassurance that conduct not leading to disciplinary action may still be included in a disciplinary investigation.

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