In NHS 24 v Pillar the EAT overturned the decision of an employment tribunal that a dismissal was unfair because the investigation report included details of previous incidents which had not led to disciplinary action.
Ms Pillar was a nurse practitioner whose role involved taking and triaging phone calls from members of the public. Her decisions led to two "Patient Safety Incidents" (PSIs) in 2010 and 2012. She was not disciplined as a result of these PSIs, but was given a development plan and training.
In 2013, she wrongly directed a caller who had suffered a heart attack to an out-of-hours GP service rather than calling 999. This PSI was the subject of an investigation report which included reference to the two earlier PSIs. Following a disciplinary process, Ms Pillar was dismissed. She brought an unfair dismissal claim in an employment tribunal.
The tribunal found that the decision to dismiss on the ground of conduct was within the band of reasonable responses. However, it agreed with Ms Pillar that the dismissal was procedurally unfair on the basis that it was unreasonable to include details of the earlier PSIs in the report.
The EAT did not agree, and substituted a decision that the dismissal was fair. Lady Wise held that it was perverse of the tribunal to find that relevant material should have been left out of the report. Lady Wise made a distinction between the present case and previous case law suggesting that taking expired warnings into account would make a dismissal unfair. She noted that, in the case of Thomson v Diosynth Ltd (2006) CSIH 5, it was found that the claimant had a false expectation that warnings which had expired would not be considered in future disciplinary proceedings. In Ms Pillar's case, the previous PSIs had not led to disciplinary proceedings and so, Lady Wise held, there could have been no expectation that they would not be considered in future.
The EAT judgment indicates that the role of the investigating officer is to put all relevant information to the disciplinary officer who will then make a decision based on that information. The reasonableness of the investigation is only relevant where a lack of thoroughness leads to insufficient information being put before the decision maker. The EAT commented that the inclusion of the information in the investigation report had not prejudiced Ms Pillar by denying her the chance to offer mitigating evidence during the disciplinary hearing.
This case is a useful reminder of the tribunal's approach to procedural fairness. When considering whether a dismissal is fair in all the circumstances, a tribunal will consider whether the employer had reasonable grounds for its belief that an employee is guilty of misconduct and that belief must be based on a reasonable investigation.
Diosynth indicates that expired warnings should not be used to elevate an offence from one which would not result in dismissal to one which does. Once gross misconduct is found, however, an expired warning can be taken into account when deciding on sanction (Airbus Ltd v Webb [2008] EWCA Civ 49).
However, this is not a hard and fast rule as the tribunal will consider all of the relevant circumstances of the dismissal. For example, in Stratford v Auto Trail VR Ltd UKEAT/0116/16 on which we reported in January, the EAT held a dismissal was fair where an employer took into account expired warnings.
In this case, the employee was dismissed for an offence which was not gross misconduct and at a time when he had no live warnings on his file. In its decision, the EAT took into account the fact that he had been disciplined for 18 different incidents over his 13 year service and that his employer reasonably believed that he would continue to break the rules in future.
First published October 2017.
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