Does the inclusion of incidents in an investigatory report which did not result in disciplinary action render a dismissal unfair?
Not usually, held Lady Wise in NHS 24 v Pillar.
P was a Nurse Practitioner employed to triage patient calls. In 2013 P directed a patient describing symptoms of a heart attack to an out of hours GP rather than the emergency services resulting in a Patient Safety Incident ('PSI'). Following an investigation and disciplinary meeting, she was dismissed.
The employment tribunal was asked to determine whether two previous PSIs which did not result in disciplinary action should have been recorded in the investigatory report considered at the disciplinary hearing. Both earlier PSIs did not result in disciplinary proceedings, although one did involve a failure to spot a cardiac red flag. Whilst the employment tribunal found the decision to dismiss within the band of reasonable responses on the evidence, it found the use of the earlier PSIs was outside of the band of reasonable responses. NHS 24 appealed.
The EAT, overturning the finding of unfair dismissal, identified this was not a case of totting up of warnings but of a lack of clinical competence. It found the approach to the investigation step in BHS v Burchell was generally aimed at its sufficiency not the gathering of too much information (although not ruling out that overzealous or otherwise unfair investigation could render dismissals unfair).
Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.