Employment law: can a disciplinary investigation be too thorough …?

It's been one of the tenets of unfair dismissal law for over 35 years that an employer must carry out a sufficient investigation before dismissing an employee for misconduct. This is an aspect that is commonly attacked by claimants in order to show that the investigation was not adequate, leading to the dismissal itself being unfair, as it is based on unsteady grounds.

Normally this is done by claimants contending that the investigation was not thorough enough – in that a reasonable employer would have taken more steps to investigate the matter before making a decision.

The recent Employment Appeal Tribunal (EAT) case of NHS 24 v Pillar considered the converse, as to whether the employer's investigation was too thorough, thus rendering the dismissal unfair.

Unfair Dismissal Employment Law Tribunal Constructive (1)

Facts of the case

The claimant was a nurse practitioner at NHS 24. Her usual duties were answering calls from the public and trying to assess their medical emergency by asking the relevant questions. She was dismissed for gross misconduct because of a Patient Safety Incident where she failed to identify that the patient was having a heart attack and referred him to the Out of Hours GP instead of calling 999.

The Tribunal said the dismissal was unfair, although her compensation was reduced by 70% to account for her own contribution. The dismissal was found to be unfair because the investigation report included two previous informal warnings the nurse had received. The claimant only received extra training as a result and was put back into her usual duties with no formal disciplinary action. The Tribunal found that the training the nurse received could have been included in the investigation report, however, the actual incidents on why the training was given should not have been. Therefore, the investigation was not reasonable, resulting in unfair dismissal.

The EAT decision – fair or not?

The EAT recognised and distinguished between the consideration of past conduct (such as expired warnings) in a decision to dismiss and the inclusion of information in an investigatory report. The issue arising in this case was whether the past conduct should have been included in the investigation itself.

However, in these circumstances the previous informal warnings were deemed relevant to the dismissing officer. The first informal warning involved a Patient Safety Incident in 2010, where the claimant had similarly failed to assess the symptoms of a person having a heart attack and referred them to a GP. The nurse received training as a result. The second warning was in 2013, concerned the claimant's decision making and she was taken off line and given an eight-week development plan.

The EAT considered if the disciplinary officer had known only that the claimant received training without knowing this was because of a Patient Safety Incident, the decision would be lacking the full background of risks to patient safety and the claimant's competence.

The Employment Tribunal failed to explain why matters that could be taken into account by the dismissing officer as bearing on patient safety could not be regarded as proper matters to include at the investigatory stage. Rather than assessing the reasonableness of the report and the investigation, the Tribunal decided what the investigation report should and should not include. The EAT found that the inclusion of the material itself did not itself make the dismissal unfair. A decision of a fair dismissal was substituted for the Tribunal's unfair dismissal finding.

Implications for employers' disciplinary investigations

Although an interesting case, it should be noted that this could (but not necessarily would) have been decided differently if the claimant had also asserted that the decision to dismiss was unfair because these warnings were considered. As it was, it was only the investigation that was complained of.

Nevertheless, it does give some comfort to employers that tribunals will be slow to criticise a thorough investigation and it is much more likely that investigations will continue to be challenged on the basis of inadequacy, rather than containing too much information.

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