Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Can you rely on previous incidents during a later disciplinary investigation?

Any employer knows any dismissal on the grounds of misconduct can only occur after a thorough investigation. It is not unusual for the former employee to claim that the investigation, and therefore their dismissal, was unfair. In turn, this has led to more and more thorough investigations being carried out.

However, it seems an investigation can go too far. In the recent case of NHS 24 v Pillar the Employment Tribunal found that a nurse working for NHS 24 had been unfairly dismissed. The nurse in question was dismissed for gross misconduct after failing to diagnose a heart attack and referring the patient to the out of hours GP instead of calling 999.   

Because the NHS’s investigation into the above incident relied on previous disciplinary incidents that had already been addressed through training, the Employment Tribunal found the nurse had been unfairly dismissed.

The Employment Tribunal’s decision was later appealed to the Employment Appeal Tribunal (EAT), who overturned the Employment Tribunal’s decision, finding that the nurse had not been unfairly dismissed. The EAT held that taking into account previous similar incidents that had not involved disciplinary action in the later disciplinary investigation was not unfair dismissal because no expectation either way had been created following the earlier incidents.

Employers are advised to be clear on their disciplinary procedures and investigations and keep clear records of all incidents relating to an employee. 


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