An employee’s failure to return to work after her maternity leave amounted to acceptance...
Employment Law Cases
Can an investigation be too thorough?
NHS 24 v Pillar
Including incidents in an investigatory report - which didn’t result in any disciplinary action – didn’t make the subsequent dismissal unfair.
This conclusion was reached by the EAT when considering an appeal brought by Ms Pillar, a nurse who’d been dismissed for gross misconduct (the tribunal had held her dismissal to be procedurally unfair because the investigation report referred to two previous incidents for which she wasn’t disciplined). Her employer appealed. This was a conduct dismissal – a lack of clinical competence - and therefore the well-known Burchell guidelines applied.
At the EAT Ms Pillar argued that the investigation report had been unreasonable because it had included reference to two previous incidents of conduct similar to that which had led to her dismissal for gross misconduct, but neither of which had been made the subject of disciplinary action at the time. As a result, she contended that those incidents were effectively ‘spent’ or waived and so should not have featured in the investigation report. The problem was that she had already conceded that the two previous incidents were relevant for the employer when considering what action it should take about the third (dismissal) incident.
The EAT allowed the employer’s appeal. While acknowledging that that the issue of fairness to an employee in taking into account past misconduct in the decision to dismiss is a contentious area, nevertheless Ms Pillar didn’t challenge the tribunal’s decision that the dismissal was fair on the basis of the material before the dismissing officer. That being so, it was perverse of the tribunal to find that relevant material should have been excluded from the report sent to the dismissing officer. Unless it could be said that the earlier incidents should never have been a factor in the decision to dismiss, there was no rational basis to exclude details of them from the investigation report. The EAT didn’t rule out the possibility that an overzealous or otherwise unfair investigation could render a subsequent dismissal unfair – but that wasn’t the case here.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0005_16_2104.html
The decision is a useful reminder of the differences between the investigation and the dismissal stage. The investigating officer’s job is to present the disciplining officer with the relevant facts; the dismissing officer’s job is to decide whether those facts justify dismissal. An investigation doesn’t have to be perfect, procedurally flawless or up to police standards. The facts being investigated need only be established on the balance of probabilities.