Too good an investigation = unfair dismissal?
Ian Machray reports on whether a dismissal can be unfair due to a disciplinary investigation being too thorough.
A full and detailed investigatory report is important to establish the fairness of any misconduct dismissal. However, a recent Employment Appeal Tribunal (EAT) considered whether it was possible for an employer to be too thorough in their report.
The case concerned a nurse practitioner employed by NHS 24 to take telephone calls from the public to determine whether a patient was a medical priority. The nurse was dismissed for gross misconduct following a Patient Safety Incident (PSI) in December 2013 where she referred a patient who had suffered a heart attack to an out-of-hours GP service instead of calling 999. She had been responsible for two earlier PSIs prior to this incident.
Neither of the earlier PSIs led to disciplinary action but were included in the report compiled by the investigating officer for the purpose of the disciplinary hearing that led to her dismissal. The employee claimed that it was unfair for the investigating officer to include the earlier PSIs when they had not been the subject of disciplinary action at the time.
The employment tribunal found that the employer did have good grounds to dismiss on the basis of the most recent incident, but still found the dismissal was unfair as the investigation was unreasonable due to the inclusive of the earlier incidents. NHS 24 appealed the decision.
The EAT allowed the appeal, overturned the tribunal decision and found that the dismissal was fair. It stated that it was inconsistent and perverse of the tribunal to find that relevant material should have been excluded from the investigatory report. Unless it could be said that the earlier PSIs should never have been a factor in the decision to dismiss, there was no rational basis to exclude them from the report.
Whilst the case ultimately went in the employer’s favour, it shows the risk that an inappropriate or a flawed investigation can undermine the decision to dismiss. Employers should always ensure that they take advice at the earliest possible stage as a failure to do so can undermine the entire disciplinary process. Employers must be careful in taking into account historic issues of misconduct or expired disciplinary warnings when deciding to dismiss, as this must always be judged on a case by case basis.
