The relevance of previous incidents in disciplinary investigations

The recent EAT case of NHS 24 v Pillar has reversed the previous Employment Tribunal decision and has found that including previous incidents that were not subject to disciplinary action in an investigation report for misconduct will not necessarily result in an unfair dismissal.

Case facts and background

Ms Pillar was employed by the NHS as a nurse practitioner delivering online and telephone care to members of the public. She was dismissed for gross misconduct following a major clinical error whereby she directed a patient describing heart attack symptoms to a GP rather than to emergency services.  Ms Pillar brought a claim in the Employment Tribunal for unfair dismissal.

In misconduct cases, the Employment Tribunal will judge whether the employer has satisfied the “Burchell test”. This involves assessing whether, at the time of the dismissal, the employer had a genuine belief in the employee’s guilt, whether the employer had reasonable grounds for this belief and whether at the time of the belief, the employer had carried out as much investigation as was reasonable. The Employment Tribunal must also consider whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer might have adopted in the circumstances.

In Ms Pillar’s case, the investigation report included previous patient safety issues she had been involved in.

Employment Tribunal decision

The dismissal was found to be unfair on the grounds that the investigation report included information about two previous patient safety incidents (one of which was in very similar circumstances) that had not resulted in disciplinary action, and their inclusion was therefore not reasonable in the circumstances. In the Employment Tribunal’s view it would have been acceptable to include details of the training Ms Pillar had attended as a result of her previous incidents, but the inclusion of the incidents themselves was found to be unreasonable since they had not given rise to disciplinary proceedings.

The EAT decision

The EAT overturned the Employment Tribunal’s decision and found that the dismissal was fair. Lady Wise, sitting alone, considered that whilst this was a contentious area, it was novel to complain that an investigation was too thorough, as the “Burchell test” is directed primarily at the inadequacy of the investigation. Lady Wise stated that she was unaware of any case in which it was argued that an investigation failed the “Burchell test” because it included too much information. She noted, however, that this does not rule out that there may be cases where an overzealous or otherwise unfair investigative process could fall foul of the test. It was relevant that Ms Pillar had not been given any expectation as to whether the previous patient safety issues she had been involved in would form part of any future conduct investigations. Moreover the Employment Tribunal should not have concluded that information relevant to patient safety should have been withheld from the decision-maker.

The case covers similar issues to a previous decision we reported on, Stratford v Auto Trial VR Ltd, where the EAT found that reliance on expired warnings for dismissal was fair following the Court of Appeal judgement of Airbus UK Ltd v Webb. However, it is important to note the disparity between the facts of these cases. Stratford provided guidance on the reliance on warnings that had expired when considering dismissal (and is to be relied on with caution). In Ms Pillar’s case the previous incidents had never been the subject of disciplinary warnings and therefore they had not expired, nor did they have a specific expiry date. It was important in this case that Ms Pillar was given no indication either way as to whether these previous incidents would be included in future investigations.

Comment and practical pointers for employers

The case is somewhat reassuring for employers and provides helpful clarification on the extent to which past incidents and behaviour of employees could be taken into account in the investigation and potentially the dismissal process where they are relevant, even if no disciplinary action was taken. However, this decision is very fact specific and the Employment Tribunal was careful to note that the specific facts of each case will require close examination to see whether the employer acted unreasonably. In this case the stakes were high, patient safety was a critical factor for the employer and previous training given to Ms Pillar on the same issue had shown that training was not a viable alternative to dismissal.

The case does not deal with expired warnings and the implications of using these may be different. Employers should tread with care, even after the Court of Appeal ruling of Airbus UK Ltd v Webb. Discipline and Grievances at work: the ACAS Guide contains some information on what should happen to expired warnings, and the Information Commissioner’s Employment Practices Code recommends that employers should ensure that there are clear procedures on how expired disciplinary procedures are treated. Employers should determine what is meant by an expired warning in their organisations. They should also consider their disciplinary procedures and decide whether they need to be amended to add clarification as to what happens when a warning has expired.

Employers may want to allow some room for manoeuvre in their disciplinary policy. If the policy states that past or expired warnings will never be taken into account, employers may find that their hands are tied even if exceptional circumstances require a different approach.

Clarity on how employers store and retain expired warnings is particularly important considering the wider data protection regime under the General Data Protection Regulation (GDPR) that comes into force in May 2018. Once this is in force employers could find themselves liable for multi-million pound fines if not compliant.  One of the data protection principles under the Data Protection Act 1998, which will continue under the GDPR, is that personal data should not be kept longer than is necessary for the purpose or purposes for which it is being processed. An employer should consider whether it is necessary to retain documentation relating to expired warnings or prior incidents of poor performance/misconduct indefinitely (even if they did not lead to disciplinary action). Usually employers should keep records of warnings for a period of time even once they have expired, but with careful consideration being given to what retention period is appropriate. If employers do have a policy that states they will delete warnings on expiry or after a certain period of time, it would be advisable to set up a diary system to remove them from individuals’ records.

Finally, don’t forget that ACAS has published extensive guidance on conducting workplace investigations. The Guidance sets out the six key steps employers of all sizes should take when carrying out investigations.