Can a disciplinary investigation that is considered “too thorough” render a dismissal unfair?
In the case of NHS 24 v Pillar, the Employment Appeal Tribunal has held that including previous issues not treated as disciplinary offences at the time within a subsequent disciplinary investigation report does not, in itself, render a dismissal unfair.
This case provides useful clarification regarding the reasonableness of disciplinary investigations and the extent to which an employer can take past conduct into account in coming to a decision to dismiss.
Employers should ensure that a fair disciplinary investigation is carried out prior to taking disciplinary action. Where an investigation is insufficient, this can render a dismissal unfair. Whether an investigation will be deemed to be sufficient will depend on the facts of each case.
The roles of the investigating officer and dismissing officer are different – whilst the investigating officer’s job is to gather all relevant information, it is up to the dismissing officer to decide what information is relevant in deciding the disciplinary outcome. Information relevant to the disciplinary issues to be decided should not be withheld from the decision maker (particularly in circumstances where the omission of such information could have serious consequences).
This case does not mean that employers should take a general approach of throwing everything into an investigation. They should still think carefully about taking into account past conduct which has not previously been the subject of disciplinary action.
Mrs Pillar was employed by NHS 24 as a nurse practitioner responsible for taking telephone calls from members of the public and asking them appropriate questions to determine their medical priority and the appropriate clinical response. In 2013, Mrs Pillar made a clinical error which resulted in a patient with heart attack symptoms being directed to an out-of-hours GP, rather than him being classed as a 999-case requiring urgent medical attention.
Although Mrs Pillar had been responsible for two earlier patient safety incidents in 2010 and 2012 when she had similarly failed to triage calls appropriately, they had not resulted in disciplinary action at the time. Instead, she was placed on a development plan requiring her to attend various training sessions.
In response to the 2013 safety incident, a disciplinary investigation was carried out and the investigating officer included details of the two previous incidents in their investigation report. In coming to his decision to dismiss for gross misconduct, the dismissing officer considered this report and the reference to the two previous safety incidents.
Mrs Pillar subsequently brought a claim in the Employment Tribunal for unfair dismissal alleging, amongst other things, that the inclusion of the earlier safety incidents when they had not led to disciplinary action at the time rendered her dismissal unfair. The Tribunal agreed, finding that her dismissal was unfair. Whilst it held that the decision to dismiss was itself reasonable (given the information included in the investigation report and the risk she had posed to patients), it went on to find that the disciplinary investigation had been unreasonable as it included details of the two earlier incidents which had not been treated as disciplinary incidents at the time. Consequently, the dismissal was procedurally unfair.
NHS 24 appealed and the Employment Appeal Tribunal overturned the Tribunal’s decision and found that the dismissal had been fair. It held that the starting point in deciding whether an investigation was reasonable was to establish whether it could be regarded as sufficient, and that it was highly unlikely that considering too much information in an investigation could render a subsequent dismissal unfair. Whilst it was for the dismissing officer to decide how to treat what could be deemed to be background information and to decide whether dismissal was appropriate in the circumstances, the inclusion of the information within the report alone did not render the dismissal unfair.
It is important to note that the Employment Appeal Tribunal acknowledged that had the investigation into Ms Pillar’s case been “over zealous” or had the investigation report included, for example, material that was biased or irrelevant, it may have reached a different decision.