Can A Disciplinary Investigation Report Contain Too Much Detail? [NHS 24 v Pillar]

Background

Ms Pillar, a nurse, was dismissed for gross misconduct after a third patient safety incident (PSI). Ms Pillar had previously been responsible for two similar PSIs; one two years before her dismissal and the other four years before her dismissal. Neither of those previous PSIs had been treated as disciplinary matters at the time. However, the manager who investigated the third PSI included in his report details about the two previous PSIs. This investigation report was used at the disciplinary hearing which resulted in Ms Pillar’s dismissal.

Ms Pillar claimed unfair dismissal. The Employment Tribunal (ET) decided that it was reasonable, based on patient safety, for the employer to have treated the latest PSI as gross misconduct. However, the ET found that the dismissal was unfair, because it had not been reasonable for the investigation report relied on at the disciplinary hearing to include details of the two previous PSIs which had not led to disciplinary action.

The employer employed. The Employment Appeal Tribunal (EAT) agreed with the employer’s arguments, and decided that the dismissal was fair.

Usually, when looking at whether an employer’s investigation was adequate, the issue is whether the investigation was too narrow, not whether it included too much detail. In this case, the argument by Ms Pillar was that the investigation report included too much information about previous incidents, for which she had not been disciplined.

The EAT said this not a case of “totting up” warnings (as no prior formal warnings had been given), but of an overall lack of clinical competence by Ms Pillar. As there had been no challenge by Ms Pillar to the overall relevance of the material before the decision-maker, the EAT took the view that it was wrong for the ET to decide that background information relevant to patient safety should have been withheld from the chair of the disciplinary hearing.

The EAT noted that it was for the chair of the disciplinary hearing to decide what to make of the additional information in the investigation report, and whether it was fair to rely on it in deciding whether to dismiss. The EAT said there was no rational basis in this case to exclude details of the previous incidents from the investigation report.

What does this mean for employers?

Whilst this case may give some reassurance to employers, there are some key points to bear in mind.

The case reminds employers that as well as showing their decision to dismiss was fair, they must also make sure a fair investigation was carried out. It is possible for a dismissal to be unfair overall if the investigation is not sufficient. In Ms Pillar’s case, it was not unfair to include details of the previous incidents. However, each case is going to be different. This does not mean that an employer can get away with “throwing in the kitchen sink” when carrying out an investigation. In relation to past conduct which has not been the subject of disciplinary action, employers should still think carefully. Had the investigation in Ms Pillar’s case been over zealous, or had the investigation report included, for example, material that was biased or not even arguably relevant, the EAT may have reached a different decision.

The case also reminds employers about the different roles of the investigating officer and the dismissing officer. The investigating officer’s job is to gather all relevant material. It is up to the dismissing officer to decide whether that material is relevant when deciding the outcome of the disciplinary hearing, and to clearly explain his or her reasoning.

JR BW July 2017

Jonathan Royle

Senior Associate