Case study: Using past conduct to dismiss an employee

PAST conduct can be taken into account when deciding to dismiss an employee, even if disciplinary action was not taken at that time. However, the case of NHS 24 v Pillar highlights the importance of following the correct procedures during any investigation into an incident.

BACKGROUND: Mrs Pillar was employed as a nurse with responsibility for triaging calls for the NHS 24 helpline. During a call in 2013, she failed to ask appropriate questions and, as a result of missing a red flag, she referred a patient who had suffered a heart attack to the out-of-hours GP rather than phoning for an ambulance.

This was dealt with as a patient safety incident (PSI) and she was dismissed for gross misconduct following a disciplinary process. The decision to dismiss her took into account two previous PSIs in 2010 and 2011.

In the first incident, she incorrectly referred a patient with cardiac symptoms to out-of-hours, while the second also raised concerns about her triage decision-making skills.

Mrs Pillar undertook a development plan and training but was not subject to disciplinary action. Mrs Pillar made a claim for unfair dismissal, challenging the fairness of the investigation report.

OUTCOME: The employment tribunal ruled that, while the employer was entitled to treat the latest PSI as gross misconduct, it was unfair and unreasonable to include information about the previous incidents in the investigation report. As such, the tribunal found the dismissal to be unfair.

Mrs Pillar’s victory was short-lived, however, as NHS 24 had the decision overturned by the employment appeals tribunal (EAT). The EAT stated it was unaware of any previous cases where it was argued that an investigation was too thorough. It decided it was reasonable for NHS 24 to take into account Mrs Pillar’s previous incidents in their investigation report.

KEY POINTS: This case is a useful reminder for practices that past conduct can be considered during the dismissal process, even if it did not result in disciplinary action. However, as the initial tribunal verdict proves, practices should take extra care if relying on information about previous incidents.

To ensure any misconduct dismissal is fair, it is important to consider the following points:

• the person carrying out the investigation should not also be responsible for conducting the disciplinary hearing

• investigations should be conducted without unreasonable delay

• there is no right to be accompanied at an investigation meeting but practices should check their own policy

• the employee should be given the opportunity to explain their version of events

• any witnesses should be spoken to and statements obtained

• the employee should be provided with a copy of any investigation report/evidence in advance of the disciplinary hearing