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Dismissal Investigation can Include Previous Incidents of a Similar Nature

 

In the recent case of NHS 24 v Pillar, the Employment Appeal Tribunal [“EAT”] has confirmed that the inclusion of previous similar incidents of misconduct which didn’t lead to disciplinary action in an investigation report does not render a dismissal unfair.

Background

For a dismissal to be fair under s98 of the Employment Rights Act 1996, an employer has to show that they believed the employee, based on reasonable grounds, to be guilty of misconduct and that at the time this belief was held, it had carried out as much investigation as is reasonable. The decision to dismiss an employee must also fall within a range of reasonable responses that a reasonable employer may have adopted in the circumstances.

NHS 24 v Pillar

In the NHS 24 v Pillar case the EAT considered whether it had been unfair for an investigation into an employee’s misconduct to include earlier misconduct that had not resulted in disciplinary action.

Ms Pillar was employed by NHS 24 as a Nurse Practitioner delivering care by telephone. In 2013 she was dismissed for gross misconduct when she failed to ask appropriate questions and referred a patient who had suffered a heart attack to an out-of-hours GP service rather than the emergency services. Ms Pillar had been involved in 2 previous incidents of a similar nature which did not lead to disciplinary action or a formal warning and were instead dealt with through additional training. The 2 previous incidents were however included within the investigation report for her disciplinary hearing which then led to her dismissal.

Ms Pillar claimed unfair dismissal arguing, among other things, that these earlier incidents should not have been included in the investigation because they had not led to disciplinary action. The first instance tribunal found the dismissal to be unfair and ruled that it had been unreasonable for the employer to include the details of the previous incidents in any investigation report since they had not given rise to disciplinary proceedings. NHS 24 appealed to the EAT.

EAT decision

The EAT allowed the appeal and overturned the decision, ruling that the dismissal was fair. In the EAT’s decision it was noted that the initial tribunal’s view that the dismissal was procedurally unfair because the investigation had been effectively “too thorough” was perverse. The EAT further confirmed that it was unaware of any case where an investigation failed because it included, or gathered, too much relevant information.

Comment

The Pillar case serves as a useful clarification of the degree to which past conduct can be considered by an employer when deciding whether to dismiss. In the Pillar case the fact that earlier incidents did not lead to disciplinary action did not mean that later similar incidents would not. Employer’s should be careful that anything included in an investigation report relates to the disciplinary action in question and reference to previous misconduct issues should only be included where it would be fair and reasonable to do so.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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