Ms Pillar was employed by NHS 24 as a Nurse Practitioner. Her work consisted of taking telephone calls from members of the public and triaging them by asking appropriate questions to determine their medical priority and the appropriate clinical outcome.
She was dismissed for gross misconduct following a Patient Safety Incident (PSI), after she failed to ask the appropriate questions and referred a patient who had suffered a heart attack to an out-of-hours GP service instead of calling 999.
She had been responsible for two earlier PSIs because of her triage decisions. Neither of those earlier PSIs had led to disciplinary action. They were instead dealt with by providing a development plan and additional training to Ms Pillar. They were, however, included in the report compiled by the investigating officer for the purpose of the disciplinary hearing that led to her dismissal.
Ms Pillar presented a claim of unfair dismissal, arguing that it was unfair for the investigating officer to have included the earlier PSIs when they had not led to disciplinary action.
The Employment Appeal Tribunal (EAT) found that the dismissal had been fair but acknowledged that the issue of fairness to an employee in taking into account past misconduct in the decision to dismiss is a contentious area.
This case is a useful clarification of the extent to which past conduct can be taken into account by an employer when deciding to dismiss. The fact that the earlier incidents were addressed solely through training and development did not, in the EAT’s view, create any expectation that future incidents would not be regarded more seriously.
The EAT highlighted that it is for the investigator to put together all relevant information and for the decision-maker to decide what to do with it. It is the decision-maker’s state of mind that should be considered when a tribunal is assessing whether dismissal was within the range of reasonable responses, and the reasonableness of an investigation is relevant only where it results in an absence of proper information being put forward to the decision-maker.