In this blog, we look at the case of NHS 24 v Pillar UKEATS/ 0005/16/ JW. In this case, the Employment Appeal Tribunal (EAT) held that an Employment Tribunal was mistaken in finding a misconduct dismissal unfair on the basis that the investigation considered previous incidents that had not been treated as disciplinary issues.
An investigation is central to a fair disciplinary process. Before looking at the above case in further detail, it is useful to remind ourselves of how fairness in misconduct dismissals is determined.
A dismissal for misconduct will be unfair under section 98 of the Employment Rights Act 1996 (ERA 1996) unless, at the time of dismissal:
- The employer believed the employee to be guilty of misconduct.
- The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
- At the time it held that belief, it had carried out as much investigation as was reasonable.
This is called “The Burchell test”, from the case it was established (British Home Stores Ltd v Burchell  IRLR 379).
An Employment Tribunal must also consider whether the employer's decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer might have adopted in those circumstances. The "range of reasonable responses" test applies both to the decision to dismiss and to the adequacy of the investigation.
In the case reported below, the EAT considered whether it had been unfair for the employer's investigation into misconduct to take account of earlier misconduct that had been dealt with by way of training rather than disciplinary action (and in respect of which no formal warning had been given).
Ms Pillar was employed by NHS 24 as a Nurse Practitioner. Her work involved taking telephone calls from members of the public and triaging them by asking appropriate questions to determine their medical priority and the appropriate clinical outcome.
Mrs Pillar was dismissed for gross misconduct following a Patient Safety Incident (PSI) in December 2013, where she failed to ask the appropriate questions and referred a patient who had suffered a heart attack to an out-of-hours GP service instead of calling 999. Mrs Pillar, had in the past, been responsible for two other PSIs. However, they were both dealt with by way of providing a development plan and additional training rather than disciplinary action. Details of those two incidents were, however, included in the report compiled by the investigating officer for the purpose of the disciplinary hearing that led to Ms Pillar’s dismissal.
Ms Pillar presented a claim of unfair dismissal, and argued that it was unfair for the investigating officer to have included the earlier PSIs when they had not led to disciplinary action.
Employment Tribunal Decision
An Employment Tribunal upheld the claim. It found that the investigation was unreasonable because it included matters other than the December 2013 PSI. In its view, it would have been relevant to include details of the training that Mrs Pillar had received as a result of the earlier PSIs but the detail of the incidents themselves should not have been included, since they did not give rise to the disciplinary proceedings.
The Employment Tribunal held that the decision to dismiss was itself reasonable on the basis of all the material included in the investigation report, including the two earlier PSIs. The Employment Tribunal held, in its view, NHS 24 was entitled to treat Mrs Pillar’s conduct as gross misconduct but nevertheless the dismissal was procedurally unfair.
NHS 24 appealed to the EAT.
The EAT allowed the appeal.
The EAT observed that the test laid down in the Burchell Test (set out above) related to whether the investigation had been adequate. The EAT was unaware of any case in which it had been argued that an investigation failed the Burchell test because it included too much information.
The EAT acknowledged that the issue of fairness to an employee in taking into account past misconduct in the decision to dismiss is a contentious area. However, Ms Pillar had not challenged the Employment Tribunal’s decision that the dismissal was fair on the basis of the material before the dismissing office. This being so, the EAT held that it was inconsistent and perverse of the tribunal to find that relevant material should have been excluded from the report sent to the dismissing officer. 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 to exclude details of them from the investigation report. The Employment 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.
The EAT substituted a finding that the dismissal was fair.
This case is a useful clarification of the extent to which past conduct can be taken into account by an employer when deciding to dismiss. The fact that the earlier incidents were addressed solely through training and development did not, in the EAT's view, create any expectation that future incidents would not be regarded more seriously.
Moreover it was clear that the Employment Tribunal had been wrong to hold that information that was relevant to patient safety should have been withheld from the disciplinary officer. The EAT highlighted that it is for the investigator to put together all relevant information and for the disciplinary officer to decide what to do with it. It is the disciplinary officer’s state of mind that should be considered when a tribunal is assessing whether dismissal was within the range of reasonable responses, and the reasonableness of an investigation is relevant only where it results in an absence of proper information being put forward to the disciplinary officer.
The case also highlights the important difference between the role of the investigator and that of the disciplinary officer. The investigator must establish the facts of the case and decide if there are grounds for convening a disciplinary hearing, without communicating to the disciplinary hearer whether they consider an individual to be ‘guilty’ or ‘innocent’. The disciplinary hearer should then consider the matter independently of the investigator’s conclusions and decide whether to impose a disciplinary sanction.
Having qualified as an employment solicitor in 2001, I built up 9 years’ experience as an employment solicitor with DAC Beachcroft, where I was made Associate in 2007. Here, I provided advice on a wide range of complex employment law issues, to a varied public and private sector customer base. I also managed a number of high value and complex litigation cases through the Employment Tribunal.
Combining this time at DAC Beachcroft, with 3 years running my own HR consultancy business, I have conducted a wide range of employment-related investigations and delivered training on a variety of employment law and HR issues. These include equality and diversity, whistleblowing, contractual disputes, disciplinary and grievance, severance agreements and redundancy situations, to name just a few.
I am now a straight-talking senior solicitor at ESP Law, part of ESP Group - a very different employment law firm and HR consultancy business, with our own in-house legal and HR experts. The vision for our business was to deliver an exceptionally personal, yet cost-effective service that truly meets the evolving needs of modern and forward thinking HR teams and their organisations. I’m lucky to be among a team of very talented employment lawyers who work hard day in, day out, to make this vision a reality.