08 January 2018

Work investigations are advised to be as consistent as possible to avoid an unfair dismissal.

Usually employers are worried about their investigations not being detailed enough. However, in the case of NHS 24 v Pillar the question was whether the investigation was too thorough!

Ms Pillar was a nurse practitioner who worked for the Scottish telephone and online helpline NHS 24. Her work involved taking telephone calls from members of the public and triaging them. She was dismissed following a failure to correctly triage a call – she referred a patient who had suffered a heart attack to an out-of–hours GP instead of calling 999. Two previous similar incidents were included in the investigation report when they hadn’t led to disciplinary action before (but were instead dealt with by providing a development plan and additional training). 

The tribunal decided that this made the dismissal unfair as it had been unreasonable for the investigation to include details of the earlier incidents. In its view, it would have been sufficient to include details of the training that Ms Pillar had received as a result, but the details of the incidents themselves should not have been included, as they didn’t give rise to disciplinary proceedings. However, the Employment Appeal Tribunal (EAT) disagreed.

The EAT held that unless it could be said that the earlier incidents should never have been a factor in the decision to dismiss (which wasn’t being argued by Ms Pillar), there was no rational basis to exclude details of them from the investigation report. The dismissal was fair.

We think that as a general rule, it’s always best to try and treat conduct consistently to avoid an unfair dismissal. However, an investigation cannot be too thorough (although an overzealous or otherwise unfair investigatory process could be unreasonable). It is for the investigator to put together all relevant information, and for the decision-maker to decide what to do with it.

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