Dismissal not unfair because investigation too thorough
The employment tribunal should not have ruled that a dismissal was unfair because the disciplinary investigation included details of similar incidents addressed through training, not disciplinary action.
The employment tribunal had been wrong to conclude that a dismissal was unfair because the disciplinary investigation was too thorough. When considering whether an investigation is reasonable, the focus should be on the sufficiency of the investigation. There was no suggestion in this case that the investigation was insufficient. Instead the employee argued that the investigation report contained too much detail of previous incidents for which she had not been disciplined. Since the employment tribunal had found that the decision to dismiss, which had taken those previous incidents into account, was within the band of reasonable responses, it could not find that that the inclusion of that information in the report of itself rendered the dismissal unfair.
Ms Pillar was employed as a nurse practitioner. She took calls from members of the public and triaged them by asking them questions to determine their medical priority and appropriate clinical outcome. She was dismissed for gross misconduct following a Patient Safety Incident (PSI) in December 2013. She had failed to ask appropriate questions which had resulted in her referring a patient who had suffered a heart attack to an out-of-hours GP service, instead of calling 999. She had been responsible for two earlier PSIs, one in August 2010 (where she also dealt with a heart attack victim incorrectly) and the second in July 2012. The employer dealt with these through training, rather than disciplinary action.
Ms Pillar claimed unfair dismissal. The employment tribunal ruled that the employer had been entitled to treat the latest PSI as gross misconduct in view of the risk to patients. It also considered that the decision to dismiss was reasonable, based on all the information available to the decision-maker, which included the two earlier PSIs. However, it ruled that the dismissal was unfair as it was unreasonable to include details of the earlier PSIs in the investigation report as no disciplinary action had been taken in respect of them. It would have been sufficient to include details of the training she received.
The employer appealed.
The Employment Appeal Tribunal (EAT) allowed the employer’s appeal.
When considering whether an investigation is reasonable, the focus should be on the sufficiency of the investigation. There was no suggestion in this case that the investigation was not comprehensive. Instead the employee complained that the report contained too much detail of previous incidents for which she had not been disciplined. However, it was crucial in this case that Ms Pillar had not challenged the tribunal’s decision that the decision to dismiss was within the band of reasonable responses, based on the material available to the decision-maker (which included the detail of the earlier PSIs). Unless it could be said that the earlier PSIs should never have been a factor in the decision to dismiss, there was no rational basis for excluding details of them from the investigation report. The tribunal’s conclusion that the inclusion of that material in the report of itself rendered the dismissal unfair was therefore inconsistent with its other findings and perverse.
Ms Pillar also argued that since an expired disciplinary warning cannot be a determining factor in a decision to dismiss, conduct which the employer does not treat as a disciplinary matter can never be such a factor. The EAT disagreed. When a disciplinary warning expires, this gives the employee an expectation that it will no longer be a determining factor in future disciplinary action. This is what makes a subsequent dismissal in reliance on that warning unfair. However, in this case no expectation had been created as to whether the earlier PSIs would or would not be relevant to a future disciplinary investigation.
The EAT substituted a finding that the dismissal was fair.
Employers must carry out as much investigation as is reasonable before dismissing an employee for misconduct. This case suggests that an investigation will not normally be unreasonable because it includes too much information. Nevetheless, the EAT recognised that an overzealous or otherwise unfair investigative process could render an investigation unreasonable. For example, an investigation might be unfair if it includes prejudicial material which bears no relevance to the facts under investigation or information that the employee has been expressly told will not be relied on in future.
Employers who wish to rely on past conduct which is not the subject of a live warning should exercise caution. Although the dismissal was found to be fair in this case, the fact that patient safety was at stake may well have been a relevant factor in deciding that the decision-maker should have all relevant information when making their decision.
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