
Dementia currently affects 1 in 14 people in the UK. Many people will either know someone with dementia, have had to support and care for someone with dementia or have been diagnosed themselves.
Under the UK legislation, a dismissal for misconduct will be unfair unless at the time of dismissal:
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.
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.
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:
This case highlights the following two key points that employers should be aware of:
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.
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.
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