Thoroughness of disciplinary investigations
Can a disciplinary investigation ever be too thorough? Gemma Cawthray examines a recent Employment Appeal Tribunal ruling.
A recent Employment Appeal Tribunal (EAT) decision found that including information about past incidents of poor performance in an investigation report will not necessarily render a decision to dismiss for gross misconduct unfair.
In this particular case, the claimant was a Nurse Practitioner who had been employed by NHS 24. Her role involved taking telephone calls from members of the public and then triaging them after asking relevant questions in order to determine the nature of their problem. Ms Pillar was dismissed by NHS 24 following a Patient Safety Incident (PSI) in which she made an inappropriate referral.
In the investigation report , the investigating officer made reference to two earlier PSIs for which Ms Pillar was responsible. These two earlier PSIs had resulted in training for Ms Pillar but no disciplinary action.
The investigation report was put before the decision maker at the disciplinary hearing that eventually resulted in the dismissal of Ms Pillar for gross misconduct.
Following her dismissal, Ms Pillar brought a claim for unfair dismissal which argued that the inclusion of the earlier PSIs in the investigation report was unfair, particularly given that they had not led to disciplinary action.
Ultimately this claim was rejected by the EAT which found that the dismissal was not rendered unfair due to the inclusion of the earlier PSIs in the investigation report. The EAT explained that it was unaware of any case where an investigation failed on account of including too much information.
Whilst acknowledging that the question of considering past incidents of misconduct is a contentious area, the EAT concluded that in this case there was no rational basis for excluding them from the investigation report.
The EAT also distinguished between the roles of the disciplinary officer and the investigating officer, emphasising that the investigating officer needed to put forward all relevant information but that, ultimately, the decision lay with the disciplinary officer.
What does this mean for employers?
It is important to note that unfair dismissal cases nearly always rely on a detailed assessment of the facts in that particular case. As no two cases are exactly the same, it can be difficult to draw general conclusions from the case law.
This decision seems to confirm that a careful and thorough investigation will rarely be a bad thing. Employers should, therefore, ensure that they always conduct a full and reasonable investigation.
The roles of investigator and decision maker should, where possible, be carried out by different people.
Whether past incidents of misconduct should be taken in to account by the decision maker is a difficult area. Whilst expired warnings should not normally be a determining factor in any decision to dismiss, this should not be seen as a general rule and a flexible approach may be reasonable in some cases.
It is important to note that the EAT in this case acknowledged that there may be some cases where the investigative process is 'overzealous or otherwise unfair'. Whilst care should be taken to make sure that all relevant information is made available to the decision-maker, employers should also be wary of creating a 'witch-hunt' whereby the investigation focuses solely on the flaws of an employee.
Gemma Cawthray is a Senior Associate at VWV. She can be contacted on 0117 314 5266 or This email address is being protected from spambots. You need JavaScript enabled to view it..
