Employment Law Speed Read – 09/10/17

NHS 24 v Pillar

Does the inclusion within an investigatory report of similar incidents which had not been treated as disciplinary matters make the dismissal unfair?

Facts

Mrs Pillar (P) was a band 6 graded Nurse Practitioner employed to triage patient calls. In 2013 P directed a patient describing symptoms of a heart attack to an out of hours GP rather than the emergency services, resulting in a Patient Safety Incident (PSI).

P had two previous PSI incidents; the first in August 2010 and the second in July 2012. Neither of the previous incidents had been treated as disciplinary matters. Despite this, the previous incidents were included within P’s disciplinary investigatory report. P was dismissed for gross misconduct.

The Tribunal decided that inclusion of details about the two similar incidents in the investigative report prepared for use by the dismissing officer fell foul of the ‘reasonable investigation requirement’ test.  In essence here, the Tribunal concluded that too much information had been gathered and included.

NHS 24 appealed the Tribunal’s decision and on appeal, the EAT found that as the employment tribunal had found that it was reasonable of NHS 24 to dismiss P on the basis of the material before it, it was both inconsistent and perverse to go on to conclude that the dismissal was unfair. When put into context, the dismissal was a result of a final serious incident where patient safety was put at risk.

The EAT found that the fact that previous incidents had taken place was relevant material as part of the background information required by NHS 24 in deciding how to deal with the December 2013 PSI.

The principal reason for the dismissal was the December 2013 conduct which was found to be a lack of clinical competence. There was no “totting up” exercise. If only the details of the training, support and coaching were provided without the reasons why i.e. the previous PSI incidents, it would have given a wholly inadequate and misleading picture against which to assess the risk of a recurrence of a failure to provide a safe service.

Comment

Previous similar incidents which come to the attention of an employer which are substantial and relevant can be taken into account as part of the investigating process, even if no disciplinary action was taken at the time in relation to the incidents.

Where the investigation and disciplinary officer are carried out by different individuals then their respective roles differ. The role of the dismissing officer is to consider the material before them. The role of the investigation officer is to furnish all relevant material to the dismissing officer. The reasonableness of the investigation is relevant only where it results in an absence of proper information being put forward to the disciplinary stage.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.