76: Dismissal fair where previous similar incidents not subject to disciplinary action were taken into account

In NHS 24 v Pillar, the Employment Appeal Tribunal (EAT) considered whether it was unfair for an employer’s investigation into misconduct to take account of previous similar incidents which had been dealt with through training rather than disciplinary action.

Ms Pillar was a nurse practitioner employed by NHS 24 to assess patient calls in order to decide their medical priority and the appropriate action. In 2013, having failed to ask the appropriate questions, she directed a patient who had suffered a heart attack to an out-of-hours GP rather than the emergency services. The investigation report on this Patient Safety Incident (PSI) contained details of two previous PSIs in 2010 and 2012 which had also resulted from her failure to ask appropriate questions, but which had been dealt with by further training rather than disciplinary action. Ms Pillar was dismissed for gross misconduct and brought a claim for unfair dismissal.

The Employment Tribunal held that NHS 24 had been entitled to treat the most recent PSI as gross misconduct in view of the risk to patients, and that the decision to dismiss was reasonable based on the information provided to the decision-maker, which included the two previous PSIs. However, the Tribunal still found the dismissal to be unfair because the investigation report should not have included the earlier PSIs when they had not led to disciplinary action. In the Tribunal’s view, the report should have included details of the training that Ms Pillar had received, but not the details of the incidents themselves. Ms Pillar’s dismissal was also held to be procedurally unfair because she had not been warned, following the earlier PSIs, that any further similar PSIs were likely to be viewed as gross misconduct.

However, the EAT allowed NHS 24’s appeal and substituted a decision that the dismissal had been fair. Since the Employment Tribunal had found that the dismissal was fair on the basis of the information used by the decision-maker, it was inconsistent and perverse to then rule that details of the two past PSIs should have been excluded from the investigatory report. In any event, failing to provide details of the previous PSIs would have led to an inaccurate assessment of the risks to patient safety. The EAT also rejected Ms Pillar’s argument that since an expired warning cannot be a determining factor in a decision to dismiss, it followed that conduct which had not been a disciplinary matter should not be taken into account at all. This situation was different because Ms Pillar had not been given any expectation as to whether or not the previous PSIs would be relevant to any future disciplinary issue. In addition, this defect was not serious enough to lead to a finding of procedural unfairness.

The EAT acknowledged that the issue of bringing up past misconduct can be a contentious area. In this case, in the EAT’s view, dealing with the earlier PSIs through further training did not create any expectation that future incidents would not be dealt with more seriously. This case also highlights the differing roles of the investigation and disciplinary officers. The investigator should put together all relevant information, and the decision-maker should then consider that information and decide what to do with it. It is the decision-maker’s state of mind which will be assessed by a Tribunal when considering whether dismissal was within the range of reasonable responses.