Disciplinary Investigations – what should go into a report?

Posted on October 27, 2017

In the case of NHS 24 v Pillar (UKEATS/0005/16) the Employment Appeal Tribunal (EAT) held that including previous incidents of unpunished misconduct in an investigation report did not render a dismissal unfair.

Ms Pillar, the Claimant in the case, worked for NHS 24. Her role was to speak to callers to a medical helpline, determine the medical priority of the callers and decide the appropriate clinical outcome. She was dismissed for gross misconduct following a patient safety incident (PSI) whereby she referred a patient who had had a heart attack to an out of hours GP surgery rather than calling 999. There had been two previous PSIs in 2010 and 2012 but she had not been disciplined for these and was instead simply asked to undergo training. The investigation into the third PSI, which ultimately led to her dismissal included reference to these historic PSIs. The person that made the decision to dismiss her was therefore aware of the first two historic PSIs as well as the third.

The Employment Tribunal which initially heard this case found the dismissal to be unfair on the basis that the investigatory report should not have included the historic PSIs. The EAT overturned the decision and ruled the dismissal had been a fair one. Part of the reasoning for this is that the investigation could not be criticised for being too thorough. Unless there was some basis on which the historic PSIs should never have been a factor, there was no rational basis to exclude details of them from the investigation report. Furthermore, as the previous incidents had been dealt with by training (rather than a warning which may have expired), Ms Pillar had no reasonable expectation that these historic incidents would be withheld from decision makers.

This case therefore provides useful guidance on what can and cannot be included in investigative reports in discrimination cases.