Can an Investigation into an employee’s potential misconduct be ‘too thorough’?
17th October, 2017
The extent to which past conduct can be taken into account by an employer when deciding to dismiss an employee has been clarified by the Employment Appeal Tribunal (EAT) in the recent case of NHS 24 v Pillar  UKEATS/0005/16/JW. This case focused on whether an investigation into an employee’s misconduct was in effect ‘too thorough’ which contrasts with the more common ground for challenging an investigation, whereby that investigation has not been adequate enough.
The Applicant, Mrs Pillar, was a Nurse Practitioner employed by the NHS to take calls from the public to determine what level of medical care they required. In December 2013, Mrs Pillar was dismissed for gross misconduct following a Patient Safety Incident (PSI) whereby she failed to ask a patient, who had suffered from a heart attack, the appropriate questions and advised them to attend an out-of-hours GP as opposed to obtaining emergency medical attention. Mrs Pillar had been responsible for two earlier PSI’s in August 2010 and July 2012, neither of which resulted in disciplinary action. However, those earlier PSI’s were recorded in the investigatory report to the 2013 incident and used as evidence in the disciplinary hearing that resulted in her dismissal.
A claim was subsequently brought to the Employment Tribunal by Mrs Pillar. It was held that the dismissal was procedurally unfair on the basis that the investigation included details of earlier misconduct which had not resulted in disciplinary proceedings. The Tribunal accepted that the decision to treat the Applicant’s gross misconduct as grounds for dismissal was reasonable in light of the risk posed to patients, and her compensation was reduced by 70% to take this into account, but held the use of the earlier incidents in the investigation amounted to a procedurally unfair dismissal.
The NHS appealed to the EAT in which Lady Wise substituted the ET’s decision and found the dismissal of Mrs Pillar was fair. The investigation undertaken by the NHS and specifically the extent of the information gathered and included in respect of the earlier incidents were not a cause to find an unfair dismissal as these incidents were relevant to patient safety. Only where the previous incidents should not be a factor in the decision to dismiss the employee should the details of those be excluded in an investigation report.
This recent EAT decision indicates where an employee has been investigated in the past for misconduct which did not result in disciplinary action, such incidents can still be included in a later investigation report and be taken into account in any future disciplinary action. This will give some comfort to employers that a thorough investigation into an employee’s misconduct will not necessarily be criticised by a Tribunal. However an employer must still be cautious not to carry out an investigation that is “too overzealous” that could render the dismissals procedurally unfair. Should you require guidance on dismissing an employee and the appropriate steps to take, particularly in respect of past misconduct, please contact our Employment department.