Can an Investigation be Too Thorough?
In NHS 24 v Pillar the Employment Appeal Tribunal (“EAT”) has overturned a Tribunal’s decision that a disciplinary investigation was too thorough and it was unfair to include details of prior incidents which had not resulted in disciplinary action.
Ms Pillar was a band 6 Nurse Practitioner who had worked for NHS 24 since 2002. Her role involved taking telephone calls from the public and triaging them by evaluating the symptoms described and taking a decision on the most appropriate time and location for next step care.
In December 2013, Ms Pillar took a telephone call from a 50 year old male who described symptoms consistent with having a heart attack. Ms Pillar failed to ask the appropriate questions and directed the patient to an out-of-hours GP service. The patient had a heart attack and NHS 24 regarded this as a Patient Safety Incident (“PSI”). Ms Pillar admitted that she had committed a clinical error by not calling 999.
There had been two previous PSIs involving Ms Pillar, in 2010 and 2012 respectively. The circumstances of the first PSI had been very similar, involving a patient suffering from a heart attack being directed to an inappropriate outcome. The second PSI also raised concerns regarding Ms Pillar’s decision-making. After each PSI, Ms Pillar was placed on a development plan. After the third occasion, a disciplinary investigation was commissioned, which ultimately led to Ms Pillar’s dismissal for gross misconduct.
Employment Tribunal Decision
The Employment Tribunal decided that the decision to dismiss Ms Pillar for gross misconduct was reasonable on the basis of the information available to the decision-maker at the time, with risk to patients being the key consideration.
However, it also found that because the investigation had included details of the two previous PSIs, the process, and therefore the dismissal, had been unfair and Ms Pillar won her claim. The Tribunal took the view that the further training and coaching which had been undertaken pursuant to the development plans was relevant to the investigation, but that this information should have been included within the investigation without reference to the previous PSIs.
The EAT found that the Tribunal’s decision was inconsistent with its own findings and was therefore perverse. Having decided that the previous PSIs were relevant (because they gave rise to the development plans), it was inconsistent to conclude that this relevant material should have been excluded from the investigation report, whilst at the same time finding that and that a dismissal based on this material had been reasonable. Exclusion of the previous PSIs by the investigating officer would, in fact, have been a serious omission given the background of risks to patient safety.
The EAT highlighted the distinction between the purpose of an investigation, which was to gather all relevant material, and the role of the decision-maker, which was to assess that material and decide whether and to what extent to rely on it in reaching their decision.
The EAT overturned the Tribunal’s decision and found that Ms Pillar’s dismissal had been fair.
This decision provides helpful clarification on the extent to which previous conduct can be taken into account when investigating and making a disciplinary decision. In this case, the information about the previous PSIs was particularly pertinent given the risks to patient safety. It was also relevant that Ms Pillar had never been given any indication about whether further PSIs would be treated as disciplinary matters. This drew a distinction with the situation where an employee receives a warning which has an expiry date because the employee then has a legitimate expectation that the warning will not be taken into account after that date, which was not the case for Ms Pillar.
The decision also highlights the interplay between procedural and substantive fairness in unfair dismissal cases. Whilst there may sometimes be an overzealous investigative process which could render a dismissal unfair, the key consideration is generally whether the investigation was sufficient, not whether it was too thorough. In order for a deficiency in the process to affect the fairness of a dismissal there should be a demonstrable relationship between an unfair step in the procedure and the ultimate outcome.
The EAT stated “unless it could be said that the previous incidents 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”.