Including previous incidents in a disciplinary investigation report, does not make dismissal unfair
The EAT has confirmed that the test for a fair dismissal focusses on whether the investigation was sufficient
In a reassuring Judgment for employers, the Employment Appeal Tribunal has found in NHS 24 v Pillar that including previous issues in an investigation report does not render a dismissal unfair. The EAT has confirmed that the test for a fair dismissal focusses on whether the investigation was sufficient, a Tribunal claimant cannot claim that an investigation report contains too much. In practice the key for fairness will be what the decision-maker took into account in their decision regarding previous events or warnings, not what was included at the investigative stage.
Mrs Pillar was employed by NHS 24 as a nurse practitioner who delivered telephone and online care. In 2013 she made a clinical error when she missed a red flag and did not direct a patient to a 999 outcome, resulting in a patient with symptoms consistent with a heart attack being only directed to a GP. She was dismissed for gross misconduct as a result. The Tribunal who considered this case said it would have held the dismissal to be fair. However it did not because the investigation report included information about two previous patient safety incidents involving Mrs Pillar from 2010. These incidents had resulted in training but not a formal warning. Perhaps surprisingly, the Tribunal held that including the information about these incidents themselves (as opposed to just the fact that training had been undertaken) rendered the dismissal unfair. It held that as a result the investigation was not reasonable in all the circumstances.
The EAT has overturned this decision, observing that it was novel for it to face an argument that an investigation was unreasonable because it gathered too much information rather than too little. The starting point of the fair dismissal test on investigation, is to establish whether the investigation is regarded as sufficient. It is highly unlikely that including too much in an investigation can render a dismissal unfair, although the EAT did not rule out the possibility that an overzealous or otherwise unfair investigative process could do so. It was for the dismissing officer to decide how to treat this background information, but the inclusion of the information about previous safety incidents alone did not render the dismissal unfair.
What does this mean for me?
Where someone is alleged to have committed misconduct, it can be difficult to know what can be referred to in the investigation report or in the hearing. Over the last few years we have seen other cases determining when spent warnings may be taken into account. This case was about the simple inclusion of information about previous incidents in the report given to the decision-maker, albeit for incidents where formal action had not been taken. It is reassuring that including such information does not render the dismissal unfair and that may encourage you to include such information in reports where you think there is a reason to do so. However the very fact that this argument had been successful before the initial Employment Tribunal, highlights that you should be careful when including information about previous historic incidents. If you are the decision-maker, this case reminds us of the importance of ensuring that you only refer to previous incidents when it is appropriate and fair to do so (if in doubt please do take advice from us).
The issue of the retention and use of previous warnings (whether formal or not) is likely to need to be on the radar over the next few months when considering GDPR and what it means for HR records. The Information Commissioner already advises that you should have clear procedures about when spent warnings are removed from personnel files, and says that investigators should not have unrestricted access to information during an investigation even if it is relevant. Removing records of old investigations or spent warnings to avoid data protection risk, can clash with the need to retain records about previous warnings and investigations to inform future disciplinary decisions (as illustrated by this case). It is reassuring that the EAT have effectively acknowledged that such information can be included in an investigatory report. When considering GDPR and the new level of potential fines for data protection offences there may be a wish to take an ultra-cautious approach to the retention of records about employee issues. This case confirms that referring back to old incidents in an investigation doesn’t necessarily render a dismissal unfair, adding an interesting dimension to striking the balance between processing data for legitimate reasons and ceasing to hold data when it is no longer necessary to do so. If you are considering what GDPR will mean for you, we will be addressing this in our forthcoming employment update seminars the details of which will be sent out soon.