Overview
Employers will often find, during the course of an investigation, that various issues, aside from the primary incident, will be brought to their attention about the employee. However, the question which has arisen from these facts is whether the inclusion of incidents within an investigation report, which did not subsequently result in disciplinary action, warrants the dismissal as unfair. This issue was discussed in the recent case of NHS 24 v Pillar UKEATS/0005/16/JW
The Facts
The Claimant was a nurse practitioner who was subsequently dismissed by the Trust on grounds of gross misconduct following a third Patient Safety Incident (PSI). The facts of the matter arose from the Claimant who, in 2013, had directed a patient who was experiencing symptoms akin to a heart attack to their out-of-hours GP instead of contacting the emergency services. The Tribunal was therefore asked to determine whether reference to two previous PSIs should have been referenced within the Investigation Report.
With regards to the first two incidents, these had not been subject to the disciplinary procedure and the Tribunal at First Instance held that the inclusion of these incidents was contrary to a “reasonable investigation” under British Home Stores v Burchell 1980 ICR 30. Notably, the Claimant had not been provided with an expectation on whether any previous PSIs would be taken into account should a further incident arise.
Although the Tribunal held that dismissal was within the band of reasonable responses in terms of the evidence, the use of the previous two PSIs rendered the process unreasonable.
The decision was subsequently appealed by the Trust.
Judgment
The EAT held that the decision at First Instance was inconsistent and perverse in accordance with the Burchell test. Lady Wise held that the dismissal was fair, based on the fact that the inclusion of the previous PSIs was due to an assessment of clinical competence and the Claimant’s inability to reach these standards. The EAT held that the Burchell test is used to assess the relevance and sufficiency of evidence as opposed to the quantity involved.
Key Points
Whilst Employers will be pleased to know that previous issues may be considered in conjunction with a disciplinary hearing, even if those matters have not previously been subject to a formal process, it should be noted that this does not provide an unequivocal right to include “anything and everything” in an investigation report.
The investigation report should not be viewed as a point-scoring exercise, but to measure the standards expected of an employee and where necessary, to refer to incidents and matters which may demonstrate a failure to comply with these standards. Employers should be mindful of “over-egging” a report, as this could potentially give rise to unfair dismissal.
