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  • Overview

    Making the decision to dismiss an employee for misconduct can be difficult and organisations usually draw upon previous incidents to assist their decision.

    As we all know, expired warnings left on record from previous disciplinary hearings cannot be the determining factor in a decision to dismiss but what about previous incidents that did not result in disciplinary proceedings? Arguably a contentious area, as the employee may consider the matter(s) to have been resolved without need for disciplinary action!

    The recent case of NHS 24 v Ms P Pillar considered this point and the outcome may surprise you.

    Background

    Ms Pillar had been employed as a Nurse Practitioner with NHS 24. She was responsible for two Patient Safety Incidents (PSI), the first in August 2010 and the second in July 2012. These were both addressed through a development plan and additional training, neither led to disciplinary action.

    In December 2013 Ms Pillar referred a patient to an out-of-hours GP service instead of calling 999 when the patient suffered a heart attack! This led to a third PSI and the NHS undertook an investigation.

    Within the investigation report (the Report), the investigating officer had included details of the previous two PSI. Ms Pillar was dismissed for gross misconduct.

    She presented a claim for unfair dismissal. Amongst other grounds of complaint, she asserted it had been unfair to include information about the previous PSIs.

    The tribunal found in her favour finding amongst other things that the inclusion of the previous PSIs in the Report was unreasonable as the incidents had not led to disciplinary proceedings. As a result the dismissal was found to be procedurally unfair (albeit with a reduction of compensation by 70% for Ms Pillar’s contributory fault).

    NHS 24 appealed the decision to the Employment Appeal Tribunal (EAT) and it substituted a decision ruling that the dismissal of Ms Pillar had been fair. The EAT specifically decided that:

    • An overzealous investigatory process does not fall foul of the requirement to conduct a fair investigatory process and that the reasonableness of an investigation is only relevant where there is an absence of information
    • There had been no expectation set by NHS 24 that previous PSI would not be relevant in future investigations and/or disciplinary proceedings. Further, that it was wrong to find that the whole disciplinary process had been unfair because of that omission
    • The tribunal had come to inconsistent findings which resulted in an unsubstantiated outcome.
       

    Comments

    Whilst this case is useful clarification, one cannot help but feel somewhat sorry for Ms Pillar. Had the previous PSI resulted in disciplinary action, their warnings would have expired by the time of the third PSI (even if they had been 12 months) and so the likelihood of being included in the Report would have been minimised.

    However, given the gravity of the third PSI, it is understandable that, as a stand alone PSI it resulted in a finding of gross misconduct which was considered fair.

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