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Can similar past conduct be used in a disciplinary investigation?

09 October 2017 #Discipline & Grievance

In NHS 24 v Pillar the claimant was a nurse practitioner who was dismissed for gross misconduct after she had failed to call 999 for a patient suffering a heart attack. The investigation into this Patient Safety Incident (PSI) also included two earlier PSIs, where no disciplinary action had been taken, including one which took place some 3 years earlier.

The employment Tribunal found that the decision to dismiss was reasonable based on the material in the investigation, but it was procedurally unfair as the earlier PSIs should not have been included.  However, the EAT disagreed. 

The EAT said that it was unaware of any examples where including too much information in the investigation made the investigation unfair, although recognised that an “overzealous or otherwise unfair investigative process” could have this effect. 

It may seem hard to reconcile this case with those based on reliance on expired warnings, which will generally render dismissals unfair (although see a case we reported on here).  However, the EAT drew a distinction here saying that in those cases, it was the false expectation created by the expiry of the time limits which rendered dismissals unfair.  In this case the claimant had no expectation either way in terms of whether the past conduct would be relevant or not.      

These cases are very fact sensitive.  It is worth noting that in this case the claimant had conceded that the earlier PSIs were relevant and did not challenge that the ultimate decision to dismiss was fair.  Therefore, the EAT, understandably, could not see how inclusion of the PSIs in the investigation could render the process unfair.


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Louise Merrell

Louise Merrell

E: lmerrell@clarkslegal.com
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