In the recent case of NHS 24 V Pillar UKEAT/0005/16, the Employment Appeal Tribunal (“EAT”) considered whether a dismissal was fair in circumstances where the disciplinary investigation report contained details of previous incidents.
During her employment with NHS 24, Ms Pillar’s role involved taking medical triage telephone calls from the public. In December 2013, Ms Pillar was dismissed for gross misconduct after it was alleged that she failed to recognise that a patient required emergency care. Prior to this incident, Ms Pillar had been the subject of a development plan and was required to undertake additional training in connection with two similar patient safety incidents. No disciplinary action had been taken against Ms Pillar in respect of the two earlier incidents, however, they were considered as part of the disciplinary proceedings which led to her dismissal.
Ms Pillar brought a claim for unfair dismissal in the Employment Tribunal (“ET”). As part of her claim, Ms Pillar argued that it was unfair for NHS 24 to have considered the two earlier patient safety incidents during the disciplinary investigation since no disciplinary action had been taken in connection with those incidents.
The ET accepted that the dismissal of Ms Pillar fell within the range of reasonable responses based on the information available to the decision maker. However, it went on to find that Ms Pillar’s dismissal was unfair. The ET concluded that, although the two earlier patient safety incidents were relevant, the investigation report contained too much information in respect of these incidents and therefore fell foul of the “reasonable investigation” requirement established in the case of British Home Stores Ltd v Burchell  IRLR 379 (“Burchell”). The ET was also of the view that Ms Pillar should have previously been made aware that a patient safety incident could be considered an act of gross misconduct.
NHS 24 appealed to the EAT. The EAT held that the ET’s finding of unfair dismissal was perverse since the ET had accepted that the earlier incidents were relevant and that the dismissal had been a reasonable outcome based on the information available to the disciplinary decision maker. The EAT also made it clear that a “too thorough” investigation would not fall foul of the Burchell requirements (although it did point out that an “overzealous” investigation might). Further, the EAT found that the ET had erred in its failure to taken into account the context or seriousness of the apparent procedural defects in respect of the disciplinary process.
It should be noted that the EAT distinguished this case from those cases involving expired warnings on the basis of the expectations of the employee. Specifically, those employees who had an expired warning taken into account as part of disciplinary proceedings had a “false expectation” that the warning would not be considered once it had lapsed. However, in this case, there was no expectation that previous similar incidents would not be considered as part of the disciplinary process.
This case confirms that previous conduct can be taken into account during a disciplinary investigation even if such conduct has not itself been the subject of disciplinary action. However, it is also a reminder that employers need to ensure that, during all stages of the disciplinary process, their actions are reasonable taking into account all the circumstances.