Insights overview

Was a disciplinary investigation overly thorough?

Was an employer justified in looking back over previous instances of disciplinary and safety issues in considering whether to dismiss for gross misconduct? Mrs Pillar… Read more

more content below

Was an employer justified in looking back over previous instances of disciplinary and safety issues in considering whether to dismiss for gross misconduct?

Mrs Pillar was a nurse employed by NHS Scotland, working on a 24-hour telephone service which provided triage and out-of-hours medical services. On two previous occasions, she had committed Patient Safety Incidents (PSIs) for giving out dangerous or potentially dangerous advice by telephone. She underwent education and training, but they were not, at the time, treated as disciplinary matters. In 2014, Mrs Pillar committed a third PSI, and a disciplinary process was held. The investigating officer considered the facts of the most recent PSI, but also took into consideration the fact that Mrs Pillar had committed two previous PSIs, even though these had not themselves triggered disciplinary processes.

Mrs Pillar claimed that this level of investigation was unnecessarily thorough, amounted to an attempt to rake up past issues, and that her dismissal for gross misconduct was therefore procedurally unsound. The Employment Tribunal agreed her, and also criticised NHS Scotland for a lack of transparency during the early stages of the investigation into the third PSI.

On appeal to the EAT, the judge found that the view presented by the Employment Tribunal was irrational and should be overturned. The EAT stressed that there is not a fixed standard within which employers have to operate, as long as decisions fall within the “band of reasonable responses” for a reasonable employer. In this particular case, the tribunal had, in the view of the EAT, failed to consider the overall context in which the series of PSIs had occurred, nor had it taken into account the seriousness of the procedural defect of the third PSI, in which warning signs relating to potential heart failure had been missed. The EAT therefore upheld the appeal, and substituted a decision of fair dismissal.

Comment: This is a helpful decision for employers, acting as a reminder that as long as disciplinary processes are not obviously perverse or irrational, tribunals are often less likely to analyse the detailed responses behind a decision, as long as they are comfortable that it falls within the band of reasonable responses. That said, the respondent in this case could have helped proceedings before and during the response to the third PSI if it had made it clearer what previous matters were in scope for the investigation. Clearly, issues relating to patient safety in a medical context are likely to justify a stringent level of investigation, as was the case here.