I have recently been running various training sessions for clients and contacts on the ‘do’s and don’t’s’ of the disciplinary process. One of the points I make very strongly is that disciplinary investigations need to be conducted properly; they should be sufficiently detailed and should not leave obvious loose ends untied. So the recent case of NHS 24 v Pillar is interesting in that it considered the question of whether an investigation can be too detailed.
The Facts Ms Pillar was a nurse practitioner. She was responsible for answering telephone calls and assessing the seriousness of medical enquiries. Over the period of about 3 years, Ms Pillar was involved in three ‘Patient Safety Incidents’ (PSIs). These PSI’s represented occasions when she failed to make appropriate decisions in relation to the medical treatment required by the patients with whom she spoke. The first two PSIs did not result in disciplinary action, but the third one did. On this occasion, she referred a patient suffering from a heart attack to her GP, rather than calling 999. In the course of investigating the disciplinary case against Ms Pillar, the details of all three PSIs were considered. After a disciplinary hearing, she was dismissed for gross misconduct. When considering her unfair dismissal claim, an Employment Tribunal concluded that the decision to treat this matter as gross misconduct was reasonable. Nevertheless, the dismissal was found to be procedurally unfair because the investigation had considered the circumstances of the two previous PSIs as well. NHS 24 appealed the Employment Tribunal’s decision.
The Appeal Whilst the Employment Appeal Tribunal judge acknowledged the importance of a properly conducted disciplinary investigation, she found the Employment Tribunal’s decision that the dismissal was procedurally unfair to be ‘perverse’. If, in the circumstances, the overall decision to dismiss Ms Pillar was fair, then the dismissal could not be made unfair simply because additional information about the previous PSIs was included in the investigatory report.
The Good News The EAT’s decision in this case is reassuring. It would seem bizarre if employers could reach fair dismissal decisions, only to be found to have unfairly dismissed their employee for having conducted too comprehensive an investigation. Nevertheless, this case reminds us of the variety of ways in which employers can come unstuck when dealing with cases of misconduct.
If you are wrestling with a disciplinary investigation and need some advice on the correct approach to adopt, please get in touch.