Data protection: privacy notice model documents
Disciplinary Investigations – what should be included?
Investigations are an essential component of any grievance or disciplinary procedure. A recent case, NHS 24 v Mrs Pillar (UKEATS/0005/16/JW), fresh from the Employment Appeals Tribunal (“EAT”) has highlighted an issue that comes up over and again; namely, can you take into account previous incidents when coming to a decision to dismiss.
Facts of the case
Mrs Pillar was a triage nurse working for NHS 24. She evaluated symptoms over the telephone and then signposted patients to the relevant service that could help them. She failed to properly triage a patient who was suffering with a heart attack resulting in a ‘Patient Safety Incident’ (“PSI”). She missed a ‘red flag’ for this patient failing to direct the patient to make a 999 call, and sent the patient to the out of hours GP instead.
Mrs Pillar had caused two previous PSIs, one in 2010, and one in 2012. The previous two PSIs were dealt with through training rather than by a disciplinary process. Mrs Pillar was not told that any further PSIs would be dealt with as gross misconduct. These two previous PSIs were included in the Investigation Report into the current incident. After the investigation and hearing, Mrs Pillar was dismissed for gross misconduct.
Employment Tribunal findings
The employment tribunal found that Mrs Pillar’s dismissal was unfair. They thought that including the two other PSIs in the Investigation Report was unreasonable. In an unusual conclusion, they said that the investigation in taking these points into account was too wide and that a reasonable investigation would not have included these two previous PSIs. They concluded that the investigation was not within the band of reasonable responses.
So far, so interesting…
The employment tribunal then tied itself up in a knot. It concluded that although the investigation itself was unreasonable, it was reasonable for NHS 24 to consider Mrs Pillar’s conduct to be gross misconduct. Nevertheless, they still found the dismissal to be unfair. NHS 24 appealed.
Employment Appeal Tribunal findings
NHS 24 appealed on the basis that the employment tribunal’s decision was perverse. The EAT agreed with NHS 24 finding that the tribunal’s decision was inconsistent. This was because the tribunal had found that the decision to dismiss was a reasonable one on the basis of the available evidence, but then went on to find that the investigation was flawed, and therefore that the overall decision to dismiss was unfair.
The EAT therefore substituted the tribunal’s finding of unfair dismissal for one of a fair dismissal.
Considerations for schools
This case shows the following:
The starting point for considering whether an investigation is fair is whether the investigation is sufficient. It is highly unlikely that too much investigation would make a dismissal unfair.
An investigation officer should include any material that is relevant to the allegations in the Investigatory Report. In this particular case, the EAT did say that exclusion of the previous PSIs by the investigating officer would have been a serious omission given the background of the risk to patient safety.
The purpose of the investigation is to gather all relevant material so that the officer making the decision to dismiss could decide all factors pertinent to the issue of dismissal.
It is for the dismissing officer to decide how to treat any background information and decide whether it would be fair to rely on it.