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Disciplinary hearings and the extent of a reasonable investigation

5th October 2017

It has long been accepted that a fair and reasonable disciplinary process must include a reasonable investigation.

The courts and tribunals have also been careful to point out that the reasonableness of an investigation will depend on the facts of each case. For example, if the employee makes admissions of the alleged misconduct for example, then the employer is not expected to carry out overly extensive investigation into the issues that the employee has already admitted. However, in some cases the investigation will have to be extensive, such as a situation where the allegations include complicated financial transactions.

A major area of problems arises where an employer has to decide where to draw the line, especially if there has been a long history of issues or incidents. Employers need to be careful in making the allegations that the employee will face very clear, so that the employee is able to understand them and can respond to them properly. It is a frequent instinct for employers to extend their investigation into incidents and allegations that have not be specifically listed in the notice of the disciplinary hearing for the employee- especially if there have been problems with the employee that have built up over a long time.  

The recently reported case of NHS24 v Pillar illustrates the problems that can arise over deciding where the line should be drawn on the extent of a disciplinary investigation. In particular it looks at the situation where past incidents were covered in an investigatory report which had not resulted in previous disciplinary action. The question posed at the appeal court was does the inclusion of those other past incidents in the investigation render the subsequent dismissal unfair? The decision in the case demonstrates the fact that sometimes the answer is “yes”, and sometimes “no”.

Ms Pillar worked as a nurse practitioner, employed to take calls for the service with the object of identifying the medical needs of the callers, and directing them to the appropriate medical services. In 2013 she took a call from a patient that described the symptoms of a heart attack. She directed the caller to an out of hours GP rather than immediately contact the emergency ambulance services. Disciplinary action was taken against her by her employer. In the course of the disciplinary investigation the employer brought forward evidence about two previous incidents which had not resulted in disciplinary action against the nurse. One of those incidents occurred just over a year earlier, and the other about three years earlier! Although neither of the previous incidents had resulted in disciplinary action (even though one did involve a failure to spot a cardiac problem), they were addressed through training. The disciplinary process after the 2013 incident resulted in the nurse being dismissed.

The Employment Tribunal which heard the case was asked to decide if the previous two incidents, which had not resulted in disciplinary action, should have been recorded in the current disciplinary proceedings, and if their inclusion in the current proceedings rendered the dismissal unfair. The Employment Tribunal found that the actual decision to dismiss the nurse had come within the band of reasonable responses on the evidence about the actual incident that brought the matter to a head. However, it concluded that the use of the earlier incidents within the investigation had been outside the reasonable range of responses, and so concluded that the dismissal had in fact been unfair. The Employment Tribunal concluded that it would have been relevant to include details of the training the nurse had received after the previous incident, but it was unreasonable to include the details of the incidents themselves within the current report for the disciplinary process. So, the Employment Tribunal concluded that the reason for dismissal was fair, but the process had been unfair.

The case was appealed to the Employment appeals Tribunal (EAT). At the EAT the decision of the Employment Tribunal was overturned.

The EAT noted that the test is whether the investigation was sufficient. It was noted that the nurse did not challenge the Employment Tribunal’s decision that the dismissal itself would have been fair on the basis of the evidence of the recent incident. The EAT identified that this was not a case of “totting up” disciplinary warnings -leading to a dismissal, but was actually a case about a lack of clinical competence. It was persuaded that the decision to dismiss the nurse fell within the range of reasonable responses, and that the investigation had not resulted in “too much” information having been gathered. The EAT did note that an over- zealous investigation can result in an unfair dismissal, but this case did not reach that point.

The important thing to note about this case is that the Employment Tribunal had accepted that the main incident itself had justified a dismissal, and to dismiss for that incident was within a reasonable range of responses open to the employer.  As the fact that the basic reason for dismissal was regarded as fair by the Employment Tribunal, and that not being challenged by the nurse in the EAT, the EAT concluded that it was inconsistent and perverse of the Employment Tribunal to find that relevant material should have been excluded from the report sent to the dismissing officer. The Employment Tribunal therefore erred in concluding that the addition of the details of the two previous incidents in the investigation report rendered the dismissal in this case unfair. The EAT therefore overturned the decision of the Employment Tribunal.

While we are of the view that the thinking of both the Employment Tribunal and the Employment Appeals Tribunal in this case is somewhat muddled as to when the point is reached that it becomes unreasonable and unfair for old matters, which had already been addressed, and where not the main incidents for the purpose of the actual disciplinary process in question, to be included in a disciplinary process, the case is still illustrative of the challenges faced by employers in carrying out a proper investigation in a disciplinary process.

We take the view that the problems encountered in this case should and could have been avoided by sticking firmly to the details of the allegation that the employee was informed of. Employees should not be taken by surprise by details of previous incidents suddenly appearing in an investigation report, or being raised against them again in a disciplinary process. Employers need to decide at the earliest possible point exactly what the allegations are that are to be put to the employee, and investigate those allegations appropriately. Employers should not be too keen and throw everything into the process if that were to include matters that had already been addressed, or matters which they had known about some time ago and overlooked. Too often an over-zealous approach can lead the employer into making what could be a fair dismissal into an unfair one.

In any event, this case clearly highlights the need for employers to have written procedures on this issue, and to exercise them in a proportionate, even-handed, and fair manner.  

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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