Can previous conduct which has not resulted in disciplinary action be considered at dismissal stage?

This was the question that faced the Employment Appeal Tribunal in the case of NHS 24 v Pillar.

The Law

In order to fairly dismiss an employee, an employer has to be able to show first that the reason for dismissal falls within one of 5 potentially fair reasons for dismissal.

These reasons are set out in section 98(2) (b) of the Employment Rights Act 1996 (the “Act”) and include “conduct”.

The next step is for the Tribunal to establish whether, in the circumstances, the employer acted reasonably in dismissing for that reason. This is set out under section 98(4) of the Act. This will involve looking at the investigation, the fact finding, the procedure followed and the sanction.

Where misconduct is the reason for dismissal, the Tribunal will judge whether the employer has satisfied the “Burchell” test ( which comes from the case British Home Store Limited v Burchell [1980] ) which involves assessing whether, at the time of dismissal:

• The employer had a genuine belief in the employee’s guilt;

• It had reasonable grounds for that belief; and

• At the time it held that belief, the employer had carried out as much investigation as was reasonable in the circumstances.

The Tribunal must also consider whether the dismissal is within the “band of reasonable responses” – which means the Tribunal must take into account that there may be a range of different ways in which an employer can act reasonably and if the actions of the employer fall within this “band” then the dismissal will be fair.

The Facts

Mrs Pillar was a nurse practitioner for NHS 24 and was employed to provide a triage service on a 24-hour helpline. She was dismissed for gross misconduct after a serious Patient Safety Incident (PSI) where she directed a patient, who described symptoms consistent with a heart attack, to an out of hours GP service instead of calling 999. The patient suffered a heart attack. An investigation was carried out and the Management report sent to the disciplinary hearing referred to two previous PSI’s where Mrs Pillar had made incorrect triage decisions. However, disciplinary action had not been taken in relation to these two incidents. Instead, Mrs Pillar was given training via a “development plan” to improve her clinical knowledge and was allowed to go back “on line” after successfully completing the plan.

Following the disciplinary hearing, Mrs Pillar was dismissed for gross misconduct on the grounds of the potential risk to patient safety. The fact that the last PSI was the third incident of its kind was material to the decision to dismiss.

Mrs Pillar brought a claim for unfair dismissal against NHS 24 on the basis that her employer should not have taken into account the two previous incidents in its decision to dismiss.

The Tribunal agreed with Mrs Pillar and held that she had been unfairly dismissed. The Tribunal said that it was not reasonable to refer in the Management report to the two previous incidents as these had not been the subject of disciplinary proceedings. The Tribunal concluded, citing the Burchell test, that the investigation was not reasonable in all the circumstances.

The Tribunal then went on to consider whether the decision to dismiss fell within the band of reasonable responses available to an employer. The Tribunal concluded (and this was crucial to the appeal) that even though the investigation was unreasonable, the decision to dismiss did fall within the band of reasonable responses because of the potential risk to public safety. Nonetheless the Tribunal went on to hold that the dismissal was unfair because the investigation was not reasonable and because of a lack of transparency in the procedure applied. Mrs Pillar had not been told that a repetition of similar misconduct would be regarded as gross misconduct.

NHS 24 appealed the decision on various grounds, including that the Tribunal’s decision was perverse.

The Decision

The Employment Appeal Tribunal (EAT) agreed with the employer and stated that it was perverse for the Tribunal to decide that the information about the previous incidents should have been excluded but at the same time find that the fact of the previous PSI’s was relevant and that a dismissal based on that information was within the band of reasonable responses.

On the issue of whether or not the investigation was unreasonable, the EAT said that the Burchell test was aimed at investigations that were inadequate. It was not aimed at investigations that were – as was the case here – too thorough and it was unlikely that including too much in an investigation could render a dismissal unfair (although the EAT did not rule out the possibility that an overzealous or otherwise unfair investigative process could do so).

The EAT granted the appeal and reversed the Tribunal’s decision, holding that Mrs Pillar had been fairly dismissed.

Points to Note

We know from case law that spent warnings can be taken into account in certain circumstances. Although it remains good practice to “wipe the slate clean” after a warning has expired, an employer does not have to artificially pretend that the previous misconduct did not take place when dealing with further similar acts of misconduct by the same employee. In a similar vein, it was recognised in this case that the information about previous incidents was clearly relevant to the decision to dismiss and, even though no formal action had been taken previously, the inclusion of this information in the report did not render the dismissal unfair. However, it is still an area where employers need to tread carefully, and the question for the tribunal will always be whether the degree of reliance on the expired warning or previous misconduct was reasonable in all the circumstances.

Action to take

1) Identify whether an employee’s poor performance is a misconduct or capability issue and deal with it under the appropriate procedure, making sure that you make it clear what the consequences of continued poor-performance or further misconduct will be.

2) If you are considering dismissing an employee and are unsure whether expired warnings or information about previous incidents can be taken into account in your decision-making, please contact us for advice.

Case Name: Employment Appeal Tribunal – NHS 24 v Pillar

This article was written and researched by Miranda Amos, Solicitor at our Salisbury office

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