The EAT has reversed a surprising decision of an employment tribunal that a dismissal was unfair because the investigation was too thorough, a thorough investigation usually being an essential element of a fair dismissal.
This case relates to the claimant Mrs Pillar, who was a nurse practitioner with NHS 24 for a period of 12 years until she was dismissed for gross misconduct in 2014. Her work involved taking calls from the public, triaging them and responding appropriately. The response could range from giving advice over the phone to making a 999 call for an ambulance. Her dismissal was the result of a particular Patient Safety Incident (PSI) in 2014 which involved Mrs Pillar missing red flag symptoms for a patient who was in cardiac arrest. Instead of calling 999 for an ambulance she referred the patient to an out of hours GP service.
Following this incident an investigation was conducted in which two previous PSIs involving Mrs Pillar, one of which was very similar to the PSI in question, were included in the report of the investigating officer. Neither of the two previous PSIs had resulted in disciplinary action, only additional training. It was argued at the tribunal that it was unfair that the other two PSIs were included in the investigation. Mrs Pillar claimed that because the investigation was too thorough and disclosed this information her dismissal was unfair.
The Tribunal’s Decision
The tribunal upheld her claim finding that the investigation was unreasonable because it included the two previous incidents. However, the tribunal noted that that it was reasonable for her employers to consider that the conduct of the final PSI amounted to gross misconduct and dismissal was a reasonable response in this situation.
Appeal to the EAT
NHS 24 appealed arguing that it was perverse to find that Mrs Pillar had been unfairly dismissed when the tribunal accepted that the decision to dismiss fell within the range of reasonable responses. It also argued that the tribunal had been wrong to find that a fair procedure was not followed.
The EAT allowed the appeal on both grounds. Lady Wise noted that the test laid down in British Home Stores V Burchell 1980 ICR 303 is directed at inadequacy of an investigation and that it was novel to complain that an investigation was too thorough. She held that the tribunal’s finding that the previous two PSIs were relevant and that the dismissal was a reasonable outcome was completely contradictory to the eventual ruling that the dismissal was unfair. It was therefore irrational and the decision could not stand.
This case is notable because the employer was criticised and lost the case because its investigation was too thorough. Previous understanding of the law of unfair dismissal was that there was no such thing as an investigation that was too thorough. In overturning the tribunal’s decision the EAT has effectively closed the door to the possibility that claimants could use the test in Burchell in a way that is contrary to its intended purpose which is to stop claimants being unfairly impacted by inadequate disciplinary investigations.
Lady Wise noted the importance of comprehensive investigations for both the protection of employees and for risk management for employers.
This is surely the right outcome. How could employers reasonably balance the need for a detailed investigation that was not too thorough?
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