The Employment Appeal Tribunal (EAT) has found that an investigation into an employee’s misconduct could not be regarded as unfair because the investigation report included details of the employee’s previous acts of misconduct, for which no disciplinary action had been taken.
In the case of NHS 24 v Pillar, Ms Pillar - a nurse - was dismissed for gross misconduct after a third patient safety incident (PSI).
Ms Pillar had previously been responsible for two similar incidents - one of which was two years before her dismissal and the other four years before her dismissal. Neither of those previous incidents had been treated as disciplinary matters at the time. However, the manager who investigated the third patient safety incident included details about the two previous PSIs in his report and this investigation report was used at the disciplinary hearing which resulted in Ms Pillar’s dismissal.
Ms Pillar claimed unfair dismissal and at the Employment Tribunal it was decided that it was reasonable, based on patient safety, for the employer to have treated the latest PSI as gross misconduct. However, to dismiss was unfair as it was not reasonable to rely on the investigation report from the disciplinary hearing - given that the report relied on the inclusion of details concerning the two previous PSIs which had not led to disciplinary action.
The employer appealed and the Employment Appeal Tribunal agreed with the arguments presented by the employer and decided that dismissal was fair. Ms Pillar’s argument was that the investigation report included too much information regarding the two previous incidents for which she had not, in fact, been disciplined.
However, the Employment Appeal Tribunal stated that this was not a case of ‘totting up’ warnings - as none had been given - but an overall lack of clinical competence and it was wrong of the Employment Tribunal to decide that background information relevant to patient safety should have been withheld. A dismissal could be rendered unfair if the investigation is overzealous or unfair, but the role of the investigator is to put together all the relevant information and in this case, the fact that the employee had committed two prior PSIs was relevant information, which was entitled to be taken into account when the decision was made regarding dismissal.
This case could be assumed to give some reassurance to employers but it also reminds them that a fair investigation must be carried out by a separate investigating officer - and that it is possible for dismissal to be unfair if the investigation is not sufficient. Also, in relation to past misconduct which has not been the subject of disciplinary action, employers should consider carefully its relevance to the case in question.
