Dismissal For Misconduct: To What Extent Can Past Conduct Be Taken Into Account?

When carrying out an investigation into alleged misconduct by an employee, the temptation may be to find as much evidence as possible. A recent case in the Employment Appeal Tribunal (EAT) has addressed the question of whether an investigation can actually be too thorough.

How "fairness" is tested

"The Burchell Test", as set down in British Home Stores Ltd, v Burchell [1978] IRLR 379, is used as the starting point in unfair dismissal cases to determine if the dismissal of an employee for misconduct was fair or not. This three-limbed test states that a dismissal for misconduct will be unfair under s.98 Employment Rights Act 1996 ("ERA") unless:

The employer believed the employee was guilty of such misconduct; The employer had reasonable grounds for believing the employee was guilty; and At the time the belief was held, the employer had carried out a reasonable investigation. Additionally, the later case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 stated that the tribunal will also have to consider whether the decision to dismiss passed what has now become known as the "range of reasonable responses" test i.e. the responses that a reasonable employer may have adopted in those particular circumstances. This test applies to both the decision to dismiss and the process followed.

Factors that will be relevant

When considering the determining factors to either dismiss or retain an employee, Thomson v Diosynth Ltd [2006] CSIH 5 stated that a "spent" (i.e. expired) disciplinary warning should not be considered in the decision making process. However, the Court of Appeal in Airbus (UK) Ltd v Webb [2008] IRLR 309 took the alternative view that s.98 ERA 1996 required a more "flexible" approach, stating that Diosynth did not specifically conclude that a tribunal could never consider previous conduct which resulted in the issue of a now expired warning.

The tribunal has recently had to consider this balancing act again in the case of NHS 24 v Pillar [2017] UKEATS/0005/16 which was reported in October 2017.

So, to which side did the tribunal lean on this occasion?

Pillar ("P") was employed as a Nurse Practitioner by NHS 24, and was responsible for speaking to the public over the telephone and triaging them by asking appropriate questions to determine their medical emergency and priority. In August 2010 and July 2012, P had been found responsible for two Patient Safety Incidents ("PSIs"), neither of which led to formal disciplinary action but was...