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The Employment Appeal Tribunal (EAT) has found in NHS 24 v Pillar that including previous issues in an investigation report does not necessarily render any subsequent dismissal unfair.
Mrs Pillar was employed by NHS 24 as a nurse practitioner who delivered care via the telephone and online. In 2013, she made a clinical error when she missed a red flag and did not direct a patient to 999, directing the patient to a GP instead. The patient had symptoms consistent with a heart attack. She was dismissed for gross misconduct as a result.
The Tribunal held that the dismissal was unfair because the investigation report included information regarding two previous patient safety incidents involving the claimant from 2010. The previous incidents had resulted in training but no formal warnings were given. The Tribunal held that including the information about these incidents themselves (rather than just referring to the fact that training had been undertaken) meant that the dismissal was unfair. It ultimately held that the investigation was not fair in all the circumstances. The Tribunal had indicated that if the two previous incidents had not been referred to, the dismissal would have been fair.
On appeal, the EAT overturned this decision, holding that the dismissal was fair. The EAT observed that it was unusual for it to face an argument that an investigation was unfair because it gathered too much information, rather than too little. It is unlikely that including too much information in the investigation will render any dismissal unfair, however, it did warn that an overzealous or otherwise unfair investigative process could do so.
The EAT confirmed that it was for the dismissing officer to decide how to treat this background information, but the inclusion of the information regarding previous safety incidents itself did not mean that the dismissal was unfair.
This is potentially a reassuring case for employers and confirms that simply including information in an investigation report will not, of itself, mean that the dismissal is unfair. However, employers should be careful to differentiate the inclusion of information with taking into account expired warnings. Any decision-makers in such a process should remember to only refer to previous incidents when it is appropriate and fair to do so.
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