MOrsel: NHS 24 v Pillar

Is it reasonable to include previous incidents that did not result in disciplinary action in a disciplinary investigation report?

In a recent UK employment tribunal case, NHS 24 v Pillar, a nurse practitioner was dismissed by reason of gross misconduct after a third serious Patient Safety Incident (PSI). The important issue in this case was the extent, if any, to which it was right to consider the two previous PSIs by the claimant which had not been the subject of disciplinary action. The UK employment tribunal said that the use of earlier incidents was outside the band of the reasonable responses; however NHS 24 appealed to the employment appeal tribunal (EAT) in the UK.

The EAT overturned the finding of unfair dismissal noting that the exclusion of the relevant material by the investigating officer would have been a serious error given the background of risks to patient safety. The EAT followed the "reasonable investigation" requirement in BHS v Burchell 1980 ICR 303 where the test was the 'sufficiency of the investigation'. The EAT highlighted the difference between the investigative stage and the decision to dismiss, stating that whether to rely on past conduct was a matter for the dismissing officer when making their decision based on the material before them.

The EAT took the view that it was appropriate to distinguish between including information in an investigation report and relying on past conduct in determining a dismissal.

Conclusion: The inclusion of incidents in an investigation report, which did not result in disciplinary action, will therefore not usually render a dismissal unfair. The decision reaffirmed that the test is whether the investigation was sufficient. However, the judge did acknowledge that the issue of fairness to an employee in taking into account past misconduct in the decision to dismiss is a contentious area and that the specific facts of each case require close examination to see whether the employer acted unreasonably.