Including Details Of Previous Incidents In Investigation Report Did Not Make Dismissal Unfair

In NHS 24 v Pillar the EAT overturned the decision of an employment tribunal that a dismissal was unfair because the investigation report included details of previous incidents which had not led to disciplinary action.

Ms Pillar was a nurse practitioner whose role involved taking and triaging phone calls from members of the public. Her decisions led to two "Patient Safety Incidents" (PSIs) in 2010 and 2012. She was not disciplined as a result of these PSIs, but was given a development plan and training.

In 2013, she wrongly directed a caller who had suffered a heart attack to an out-of-hours GP service rather than calling 999. This PSI was the subject of an investigation report which included reference to the two earlier PSIs. Following a disciplinary process, Ms Pillar was dismissed. She brought an unfair dismissal claim in an employment tribunal.

The tribunal found that the decision to dismiss on the ground of conduct was within the band of reasonable responses. However, it agreed with Ms Pillar that the dismissal was procedurally unfair on the basis that it was unreasonable to include details of the earlier PSIs in the report.

The EAT did not agree, and substituted a decision that the dismissal was fair. Lady Wise held that it was perverse of the tribunal to find that relevant material should have been left out of the report. Lady Wise made a distinction between the present case and previous case law suggesting that taking expired warnings into account would make a dismissal unfair. She noted that, in the case of Thomson v Diosynth Ltd (2006) CSIH 5, it was found that the claimant had a false expectation that warnings which had expired would not be considered in future disciplinary proceedings. In Ms Pillar's case, the previous PSIs had not led to disciplinary proceedings and so, Lady Wise held, there could have been no expectation that they would not be considered in future.

The EAT judgment indicates that the role of the investigating officer is to put all relevant information to the disciplinary officer who will then make a decision based on that information. The reasonableness of the investigation is only relevant where a lack of thoroughness leads to insufficient information...