Employer entitled to take into account previous episodes of misconduct which had not been treated as disciplinary matters

The EAT has overturned a decision of the Employment Tribunal that a misconduct dismissal had been unfair on the grounds that: (i) the investigation report contained details of past misconduct offences that had been dealt with by way of remedial training; and (ii) the employer had not been transparent with the employee about the fact that further instances of misconduct could result in dismissal for gross misconduct. Given that the Tribunal had found the dismissing officer's decision to dismiss had fallen within the band of reasonable responses, it was perverse to say that the dismissal was unfair because the investigation report contained too much background information. To the extent that there had been a lack of transparency, this had to be viewed in context and it was not sufficiently serious to render an otherwise reasonable dismissal unfair (NHS 24 v Pillar).

Background law

In order to show that it has dismissed fairly for misconduct, an employer must satisfy the test established by Burchell v British Home Stores, namely that:

• it believed the employee to be guilty of misconduct;
• it had reasonable grounds for believing the employee was guilty of misconduct; and
• in forming such a belief on reasonable grounds, it carried out as much investigation as was reasonable in all the circumstances.

In Burchell, the focus was on the sufficiency of the investigation i.e. an inadequate investigation could cause unfairness such that a dismissal should be regarded as unfair.

Facts

The Claimant was employed by NHS 24 as a Nurse Practitioner for 12 years. Her role involved taking telephone calls from the public and "triaging" them (i.e. deciding the degree of urgency of the patient's reported condition and allocating treatment to them accordingly). The outcome of her decision-making ranged from giving treatment advice over the telephone, to treating the situation as an emergency and calling an ambulance.

In December 2013 the Claimant was responsible for a "Patient Safety Incident" (PSI)(the December 2013 PSI). She was telephoned by a member of the public who described having symptoms consistent with a heart attack. However, the Claimant referred him to an out-of-hours GP service. When he attended the out-of-hours GP service he was assessed and an ambulance was called. The Claimant subsequently accepted that she committed a clinical error by not directing the patient to call an ambulance.

Prior to the December 2013 PSI, the Claimant was involved in two earlier PSIs:

• In August 2010 the Claimant had referred a patient presenting with heart attack symptoms to an out-of-hours GP service (the August 2010 PSI). No disciplinary action was taken. Instead, the Claimant was taken off the telephone line and placed on an 8-week development plan, which included a target of improving her clinical knowledge of cardiac care to ensure safe and efficient outcomes. She successfully completed the training and returned to her role. The Claimant was not made aware that a repeat of similar conduct to the August 2010 PSI would be regarded as gross misconduct that could result in her dismissal.
• In July 2012 the Claimant was involved a PSI which, again, raised concerns about her decision-making (although it did not involve the inappropriate triaging of a potential heart attack patient) (the July 2012 PSI). This PSI was also not treated as a disciplinary matter. Again, she was taken off line and placed on a further development plan.

Disciplinary action was initiated against the Claimant following the December 2013 PSI. An investigative report was prepared for the dismissing officer which included details of the August 2010 PSI and the July 2012 PSI. The Claimant was dismissed for gross misconduct and brought a claim of unfair dismissal.

Decision of the Employment Tribunal

The Tribunal found that the decision to dismiss fell within the range of reasonable responses given the potential risk to patient safety, however, they went on to conclude that the dismissal was procedurally unfair.

Firstly, they decided that the inclusion of the earlier PSIs in the investigative report fell foul of the "reasonable investigation" requirement in British Home Stores v Burchell. It would have been reasonable to include details of the training and coaching that had been given to the Claimant following the earlier PSIs, but it was not reasonable to include details of the PSIs themselves as they had not been the subject of disciplinary action.

Secondly, they concluded that there had been a lack of transparency in the process: the Claimant had not been warned after either the August 2010 PSI or the July 2012 PSI that a further serious PSI could result in her dismissal for gross misconduct.

The Tribunal went on to reduce the Claimant's compensation by 70% due to her contributory fault.

The employer appealed on three grounds:

• First, it was an error of law on the part of the Tribunal to say that the earlier PSIs should have been excluded from the investigative report. They argued that unfair dismissal law was wide enough to allow consideration of an employee's earlier misconduct as a relevant circumstance giving context to a later decision to dismiss, except where a prior warning had expired.
• Second, it was a further error to conclude that they had not conducted a fair procedure by reason of a lack of transparency to the Claimant. Furthermore, even if there had been such an error, the Tribunal erred in assuming that such a procedural defect would render an otherwise reasonable dismissal unfair. Rather, in context, it was insufficiently serious to mean the dismissal was unfair.
• Third, the Tribunal had failed to consider a reduction to the compensation awarded on the basis that the Claimant would have been dismissed in any event even if a fair procedure had been followed (a "Polkey deduction").

Decision of the EAT

The EAT upheld the employer's appeal on the following grounds:

• Correctly analysed, the Burchell case relates to the sufficiency of the investigation. In this case, there was no suggestion that the investigation was not comprehensive and thorough. Rather, the complaint was that the investigation report contained too much information about the earlier PSIs for which the Claimant had not been disciplined. The EAT said it was unaware of any case authority that an investigation failed the Burchell test because it was too thorough (although they accepted that an over-zealous investigation might impact fairness).
• There was a distinction to be made between: (i) relying on the past conduct as a principal reason determining the dismissal; and (ii) including the information in the investigation report on the basis that it was relevant background. It was accepted that it would be unfair for an employer to rely on an expired disciplinary warning when determining whether to dismiss an employer, since the expiry of the warning would have created an expectation that the conduct would not factor in a future decision to dismiss. However, simply taking the information about past conduct into account as a relevant background would be permissible.
• In this case, no expectation had been created that the earlier PSIs would not be taken into account in a future disciplinary investigation. It was inconsistent and perverse for the Tribunal to conclude that material which was relevant to the investigation should have been excluded from the investigation report. This would have been a serious omission given the background of risks to patient safety.
• Given that there was no challenge to the reasonableness of the dismissing officer's decision to dismiss, it was irrational to find the dismissal unfair on the basis that the investigation report was too comprehensive. In other words, unless it could be said that the previous incidents should never have been a factor in the decision to dismiss, there was no rational basis to exclude them from the investigation report.
• The Tribunal had also erred in law by failing to explore the procedural defect (the lack of transparency to the Claimant) within the overall context of what had occurred. The Tribunal had failed to analyse the seriousness of the perceived lack of transparency in terms of prejudice to the Claimant.
• As the employer succeeded on the first two grounds of appeal, the Polkey argument fell away. However, the EAT noted that had they not upheld the appeal they would have remitted the Polkey issue to the Tribunal to consider.

Comment

This case highlights the important difference between the role of the investigating officer and the dismissing officer in a misconduct investigation, as well as the extent to which instances of past misconduct can be considered.

The role of the investigating officer is to conduct an investigation which is sufficiently thorough to satisfy the Burchell test. All relevant information should be included, including about past instances of misconduct. Merely including such information in an investigation report should not render any subsequent dismissal unfair.

The role of the dismissing officer is to make the decision as to the employee's guilt and the appropriate sanction, taking into account all of the circumstances and evidence. However, the dismissing officer must tread carefully when taking into account past misconduct, particularly where any warning has expired. It is permissible to treat such information as relevant background, but it could render the dismissal unfair if it is treated as a principal factor in the decision to dismiss. As the EAT noted in this case: "…taking into account past misconduct in the decision to dismiss is a contentious area and the specific facts of each case will require close examination to see whether the employer acted unreasonably".

NHS 24 v Pillar