The claimant worked as a Nurse Practitioner, with her duties consisting of taking telephone calls from the public and prioritising them based on their medical priority. Following a situation where she referred a patient who had suffered a heart attack to an out-of-hours GP service she was dismissed for gross misconduct.

She had been involved in two similar incidents previously which were dealt with by her employer through training rather than through any disciplinary action. Nonetheless, the report which was compiled for the purpose of her eventual disciplinary hearing referred to the two previous incidents.

The initial tribunal considered that it was not reasonable for the employer to consider incidents which did not themselves give rise to disciplinary proceedings. The dismissal was ultimately deemed to be procedurally unfair and the employer appealed.

The EAT allowed the appeal, noting that it was perverse of the tribunal to find that relevant material should have been excluded from the report sent to the dismissing officer. It held that there was no rational basis on which details of the earlier two incidents should be excluded from the investigation report unless it was argued that they should never have been considered a factor in the dismissal. The EAT substituted a finding that the dismissal was fair.

Practical Lessons

The EAT noted that the purpose of a disciplinary investigation is to gather all relevant material so that the officer making the decision to dismiss can decide all factors pertinent to the issue of dismissal. It went further by stating that it was unaware of any examples where consideration of too much at the investigation stage had been said to fall foul of what is known as the ‘reasonable investigation test in British Home Stores v Burchell 1980 ICR 303.

The EAT did, however, recognise that in some circumstances an overzealous or otherwise unfair investigation could fail this test and the focus must be on the sufficiency of that investigation.

What seems to be of paramount importance in these cases is what the expectation of the employee actually was as to the status of previous incidents. The EAT discussed other case law in which the expiry of a written warning had created a ‘false expectation’ and thus the subsequent dismissal in which this warning was considered was deemed unfair. Therefore, clear communication to employees about the status of their previous incidents/warnings appears to be key. Fundamentally, it should be made clear to employees if the details of any incidents/warning will be considered relevant or irrelevant to any future investigation into her conduct.
https://assets.publishing.service.gov.uk/media/59d3447be5274a449204f192/NHS_24_v_Mrs_Patricia_Friel_Pillar__UKEATS_0005_16_JW.pdf