Although a dismissal for misconduct will usually be found to be procedurally unfair if the employer cannot show that they carried out a reasonable investigation (among other things), the Employment Appeal Tribunal (EAT) held in NHS 24 v Pillar that it is not necessarily unfair to include additional information (such as past incidents) in an investigatory report even if it is not relevant.
Basic facts
Ms Pillar worked as a nurse practitioner for NHS Scotland which provided telephone and online care services to people 24 hours a day, seven days a week. Her job involved evaluating the symptoms being described to her by members of the public over the phone and determining what they should do next.
In December 2013, she was contacted by a man who described symptoms consistent with a heart attack. Instead of calling 999, she directed him to an out of hours GP service where he did indeed have a heart attack. After an investigation into this Patient Safety Incident (PSI) she was dismissed for gross misconduct.
She claimed unfair dismissal on the basis that the investigatory report into the PSI included details of two previous PSIs, neither of which had been treated as disciplinary matters at the time although she had been required to undertake a development plan.
Tribunal decision
Although the tribunal accepted that it was reasonable for NHS 24 to consider Ms Pillar’s conduct to be gross misconduct, it held that including details of the other two PSIs in the investigative report fell foul of the third requirement set out in British Home Stores v Burchell for employers to carry out a reasonable investigation.
Whilst NHS 24 was entitled to include details of the training she had undergone following the other PSIs, it was not entitled to include details of the incidents, given that they had not been treated as disciplinary matters at the time. It concluded therefore that her dismissal was procedurally unfair because the investigation “was not within the band of reasonableness”.
EAT decision
Allowing the appeal, the EAT held that the starting point of the Burchell test (in relation to the investigative stage) was to consider the “sufficiency” of the investigation. There was no suggestion in this case that the investigation was not comprehensive and whilst there might be cases where an “overzealous” investigative process could fall foul of the test, no evidence to that effect had been put forward in this case. It was therefore hard to understand how the investigation could be held to be unreasonable because it had gathered too much information.
Although it was clearly a contravention of the principle of fairness for an employer to put a time limit on a warning and then treat it as a determining fact in a dismissal, Ms Pillar had not been given any indication as to whether the details of her previous PSIs would be considered relevant or irrelevant in any future investigation into her conduct, should there be a repeat. Given that the tribunal itself had made a finding of fact that the previous PSIs were relevant (and Ms Pillar had not appealed against this finding), it was irrational for the tribunal to decide that it was unfair for the employer to include information about those incidents in its report.
As a result of treating an isolated procedural flaw separately from the substantive reason for dismissal (the risk to patient safety), the tribunal had ignored its own finding that the decision to dismiss was within the band of reasonable responses in deciding whether the defects were so serious that they rendered the whole process unfair.