Does including previous incidents in a disciplinary investigation report make dismissal unfair?

Background

Under the UK legislation, a dismissal for misconduct will be unfair unless at the time of dismissal:

• The employer believed the employee to be guilty of misconduct.
• The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
• At the time the employer held that belief, it had carried out as much investigation as was reasonable.

Further, the tribunal must also consider whether the employer's decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer might have adopted in those circumstances.

Although expired disciplinary warnings should not be a determining factor in a decision to dismiss, the case law confirms that the employer needs to take a "flexible" approach, and therefore there is no general proposition that the employer can never take account of previous conduct.

Facts

Ms Pillar, a trained nurse, was employed as a call operative by NHS 24 to work on their medical telephone helpline service. As part of her duties, she would take calls from the members of public and after asking them a series of questions, would suggest a course of action to the member of public, e.g. take some rest or attend hospital.

Ms Pillar had been employed by NHS 24 over a number of years, and there had previously been two Patient Safety Incidents (PSIs) concerns raised relating to the handling of calls. (Incidents that lead to a patient being put at risk are labelled by NHS 24 as PSIs). NHS 24 didn’t take disciplinary action against Ms Pillar in respect of these incidents. Instead, they dealt with the matter by providing Ms Pillar with a development plan and additional training.

Later a further PSI occurred. As part of the disciplinary proceedings into this incident, the investigation report included information about two previous patient safety incidents involving Mrs Pillar. Following the use of the report in the subsequent disciplinary process, NHS 24 dismissed Ms Pillar for gross misconduct.

Judgment

Ms Pillar claimed unfair dismissal – she argued her that it was unfair for the investigating officer to have included in his investigation report comments in respect of earlier PSIs when they had not led to disciplinary action.

Although the Employment Tribunal held that NHS 24 had been entitled to treat the latest PSI as gross misconduct, it went on to find Ms Pillar’s dismissal unfair as it had been unreasonable of the investigation to include details of the previous PSI’s in their report. In the tribunal’s view, NHS 24 should not have included details of the previous incidents. The Tribunal also went on to find that Ms Pillar had not been made aware, following the earlier PSIs, that further similar PSIs were likely to be viewed as gross misconduct.

NHS 24 appealed the case to the EAT, who upheld the appeal and substituted a finding that the dismissal was fair. In making this decision, there were three key findings:

• Investigation – The EAT found that an investigation could not be unfair because it included too much information. It noted that the question of past misconduct when deciding to dismiss is a contentious area. However, in this case, Ms Pillar had not challenged the Tribunal’s decision that the dismissal had been fair on the basis of the material before NHS 24 and therefore it would have been perverse of the tribunal to find that the relevant material should have been excluded from the report.
• False expectation – The EAT held that in this case no expectation had been created as to whether the earlier PSIs would, or would not, be relevant to a future disciplinary investigation and, as a result, it was not unfair to have referred to the incidents. It found this was a different situation to the expiration of a previous warning.
• Procedural defects need to be put in context – The EAT also found the Tribunal had been wrong to find the dismissal procedurally unfair because NHS 24 had failed to tell Ms Pillar earlier of the likely consequence of another PSI. They found that the tribunal had failed to look at the context or gravity of the procedural defect.

Comment

This case highlights the following two key points that employers should be aware of:

• Past conduct – the extent to which past conduct can be taken into account when deciding to dismiss will depend on the individual facts of each case. In this case, the fact that the earlier incidents were addressed solely through training and development did not, in the EAT's view, create any expectation that NHS 24 would not regard future incidents more seriously, or that they would not consider the previous conduct where there is an on-going failure to act appropriately.
• Take care when conducting an investigation – The EAT highlighted that it is for the investigator to put together all relevant information and for the decision-maker to decide what to do with it. The reasonableness of an investigation will be very relevant where it results in the absence of proper information being put forward to the decision-maker.

Finally, we would remind you that you will need to be cognisant of the new General Data Protection Regulations (GDPR) when keeping past information about employees’ conduct and you should ensure that there is a clear procedure on how you will treat expired warnings. Employers will need to strike a balance between the need to keep this data and ceasing to hold data when it is no longer necessary to do so.

Further Information

For more information on the new GDPR go to link, or if you have any questions, please get in touch with your usual contact in our Employment Team. You can find out more about our employment work on our website.