previous misconduct incidents

NHS 24 v Pillar

Hello and welcome back to your case law update. First off, after a glut of cases covered in September, we were unable to send out an update the past two weeks due to a dearth of relevant cases. Thankfully, that shortage is over now and we hope your updates can resume as normal.

Our last update was September’s newsletter, it had features on pay reporting, the gig economy and the England Women’s Football Team. This week we will be looking at disciplinaries and gross misconduct dismissals.

During any disciplinary procedure, case law dictates that employers must conduct a reasonable investigation and any decision must be one that a reasonable employer would also reach. If not, any decision to dismiss might be unfair.

In this case the question is:

Can a dismissal be fair if the disciplinary investigation and decision to dismiss are based on previous misconduct incidents that did not result in disciplinary action?

Ms Pillar, the Claimant, was a nurse practitioner for NHS 24, the Respondent. The Respondent provided round the clock telephone advice for NHS users. Part of the Claimant’s role was to advise potential patients of appropriate medical action to take based on symptoms they described, this could result in anything from generic advice to emergency 999 calls.

The Claimant was involved in a call where she failed to advise a person that was possibly suffering from a heart attack to call 999 and instead advised them to visit their GP. Following the incident, the Claimant was suspended and a disciplinary investigation was carried out.

During the investigation, it was found that the Claimant had been involved in two similar incidents. Like the incident she was suspended for, one of those prior incidents also involved giving incorrect advice to someone suffering a suspected heart attack.

In the previous incidents, the Claimant was put on a performance plan and given training to try and prevent future incidents. At the disciplinary hearing, the Claimant was dismissed for gross misconduct.

The Claimant initiated Tribunal proceedings, she argued that it was unfair to include the previous incidents in the disciplinary investigation as they had not warranted disciplinary action and that the inclusion of the previous incidents had been one of the factors resulting in her dismissal.

The ET held that despite the decision to dismiss being in the band of reasonable responses the dismissal was procedurally unfair as the inclusion of the previous incidents meant disciplinary investigation was unreasonable.

The Respondent appealed and the EAT allowed the appeal. It held that the reasonable investigation test was to ensure a sufficient and thorough investigation not to discourage employers from gathering lots of information. It added that the reasonable investigation test will not be undone by gathering too much information unless the investigation was intrusive or overzealous.

The takeaway point:

No, not usually. A reasonable investigation is one that properly investigates the issue, to encourage a thorough examination of the evidence. Only in extreme circumstances will an employer be penalised for collecting too much disciplinary evidence.