Disciplinary proceedings: What is a reasonable investigation?
Cecily Donoghue, Employment solicitor at Gregg Latchams, reports on the recent Employment Appeal Tribunal’s (EAT) decision on the extent to which an employer can review and rely on previous incidents which did not result in disciplinary investigation, when considering a dismissal for gross misconduct in a new incident.
NHS 24 v Pillar UKEAT/0005/16/JW
The Claimant was a nurse practitioner, who was dismissed for gross misconduct after a third Patient Safety Incident (PSI). Her work involved taking telephone calls from members of the public and triaging them by making a decision on the appropriate clinical care. Her role was not to diagnose, but to evaluate the symptoms and decide on the appropriate level of outcome.
A patient displayed cardiac symptoms, and the Claimant referred them to a local out of office GP service. The patient suffered a cardiac arrest. A PSI was logged, and the NHS identified that the Claimant should have called 999. No disciplinary action was taken but the Claimant was placed on an 8 week development plan, and after successfully completing the plan she was put back online.
A second PSI was logged in different circumstances, but again, concerns were raised about the Claimant’s decision making and she was again taken off line and given a development plan. Again, no disciplinary action was taken.
In very similar circumstances to the first incident, the Claimant failed to call 999 after cardiac symptoms were described and instead directed the patient to the out of hours GP service where he suffered a heart attack.
After the December 2013 incident, disciplinary proceedings were instigated and the investigatory officer included the 2010 and 2012 PSIs in the investigation report. The Claimant was subsequently dismissed for gross misconduct.
The Tribunal’s decision
The Claimant issued proceedings for unfair dismissal, and the tribunal at first instance found the dismissal to be unfair. Gross misconduct involves either deliberate wrongdoing or gross negligence. The difficulty was that the Trust relied on the fact that the Claimant had committed very similar conduct in the past, but this had not led to disciplinary proceedings. Whilst the decision to dismiss was reasonable, the investigation was not within the band of reasonable responses.
The Claimant had not been warned that further PSIs would be reviewed as gross misconduct, and there was a lack of transparency as to whether anything other than a further development plan would be considered. The Tribunal decided that the dismissal was unfair, and the Claimant won. Damages were however reduced by 70% due to her failure to adhere to the proper recording systems and this behaviour had led to her dismissal.
The Trust then decided to appeal and challenge the tribunal’s findings. Their argument was: how could the tribunal conclude that it was reasonable to dismiss the Claimant on the basis of the material before it, but then conclude that the dismissal was unfair? The principle reason for her dismissal was due to a lack of clinical competence; there had not been a “totting up” exercise of the previous PSIs.
The EAT concluded that it was both inconsistent and perverse for the Tribunal to conclude that material that was relevant to the investigation should either have been excluded from the report or redacted, whilst at the same time finding that a dismissal based on that information was within the band of reasonable responses.
The appeal was allowed, and the judge substituted a decision that the dismissal had been fair.
What does this mean for you?
A dismissal for misconduct will be unfair unless, at the time of the dismissal:
- The employer believed the employee to be guilty of misconduct;
- The employer had reasonable grounds for believing that the employee was guilty of that misconduct; and
- At the time it held that belief, it had carried out as much investigation as was reasonable.
The investigation and any subsequent decision to dismiss must both fall within the range of reasonable responses that a reasonable employer would have adopted in the circumstances.
This particular case acknowledges the important differences between the investigation stage and the subsequent decision to dismiss. The investigation officer was not relying on the previous incidents to indicate that the disciplinary officer should make a decision to dismiss. The purpose of the investigation was to gather all relevant material, and the previous incidents were clearly relevant. The disciplinary officer was then able to consider all the evidence and make a decision based on all the factors relevant to the issue.
Previous case law has established that expired warnings should not be a determining factor in a decision to dismiss, however the EAT reiterated that there is no blanket restriction against considering previous conduct. Similarly, whilst procedural failings can render a dismissal unfair, they are not “in a vacuum”, and should be considered together with the reasons for dismissal in assessing whether, in all the circumstances, the employer acted reasonably.
If your business requires advice on disciplinary issues or conducting a workplace investigation, we recommend you speak to our employment team.
We are also hosting an event on Wednesday 8 November on Disciplinary Hearings – Dos and Don’ts. Come along to learn more.