This article was published on January 10th, 2018
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 – the patient then had a heart attack. Two previous similar incidents were included in the investigation report when they hadn’t led to disciplinary action before. The tribunal decided that this made the dismissal unfair as it was an unreasonable investigation – it was too thorough. However, the Employment Appeal Tribunal 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. It is for the dismissing officer to decide how to treat the investigation report and to decide whether it would be fair to rely on it at all.