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Too much investigation?

Too much investigation?

The Employment Appeal Tribunal in the case of NHS 24 v Pillar has considered whether a disciplinary investigation into gross misconduct was too thorough when it took into account previous similar incidents that had not resulted in disciplinary action.

Background

The Claimant was employed by NHS 24. She would take calls from the public, ask questions to determine their medical priority and decide where to direct them to for appropriate medical treatment.

A patient safety incident (“PSI”) occurred when the Claimant failed to ask appropriate questions and directed a patient who had suffered a heart attack to an out of hours GP service instead of the emergency services.

Prior to this incident, the Claimant had also been responsible for two other PSI’s. These previous incidents did not result in disciplinary action but had resulted in a training and a development plan for the Claimant.

Reference to the previous PSI’s were included in the investigation report for the disciplinary hearing at which the Claimant was dismissed for gross misconduct.

The Claimant brought a claim for unfair dismissal and argued that it was unfair that the investigating officer had included reference to the previous PSI’s in the investigation report when they had not resulted in any disciplinary action.

Decision

The Employment Tribunal found that although NHS 24 had been entitled to treat the most recent PSI as gross misconduct, the dismissal was unfair on procedural grounds as it was unreasonable to include reference to the earlier PSI’s in the investigation report.

The Employment Appeal Tribunal (“EAT”) overturned the decision finding it was perverse of the tribunal to find that the decision to dismiss was reasonable but that the dismissal was procedurally unfair because there had in effect been ‘too much’ investigation.

The EAT also drew distinction between the circumstances in this case and formal warnings which have an expiry date. Formal warnings give an expectation to employees that they will no longer be taken into account in disciplinary proceedings but in this case, there was no such expectation given that the previous training and development plan would not be referred to in any disciplinary proceedings.

Comment

Disciplinary investigations need to be within the “range of reasonable responses” and the level of investigation required will vary in each case depending on its own facts. Employers should include information that is relevant to the issues but be careful before referring to previous warnings that may have expired.

Please feel free to contact us on 0191 282 2880 for a no obligation chat or email us if you require advice on investigation reports or disciplinary procedures.

 

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