Investigations into employee misconduct: how far is too far?

FOR almost 40 years since the landmark decision in British Home Stores v Burchell, it has been a key principle of unfair dismissal law, that a decision to dismiss an employee for misconduct must be founded upon a reasonable investigation.

On this basis, shortcomings in employers’ investigation processes and failures by investigating officers are regularly challenged in tribunal cases by claimants who hope to demonstrate that the decision to dismiss them was unfair and made without knowledge of the full facts.

In the recent case of NHS 24 v Pillar, however, the claimant took the opposite approach – alleging instead that her employer had been too thorough in its investigation and that too much information had been included in the investigation report which ultimately led to her dismissal.

By way of background, Ms Pillar was employed by NHS 24 as a nurse practitioner who took telephone calls from the public, made decisions on their medical priority and gave advice on the appropriate action to be taken. She was dismissed in 2013 for gross misconduct, following an incident where she failed to identify that a patient was suffering a heart attack and referred them to a GP instead of calling for emergency assistance. The investigation report prepared following the incident (which was sent to the dismissing officer) referred to two previous incidents in 2010 and 2012 where Ms Pillar had incorrectly advised patients. These previous incidents were included in the report despite the fact no disciplinary action had been taken in relation to them.

The case was appealed after the tribunal in the first instance concluded that Ms Pillar’s dismissal was unfair. In the tribunal’s view it had been unreasonable for the investigation to include details of the 2010 and 2012 incidents given they had not given rise to disciplinary proceedings.

The Employment Appeal Tribunal reversed this decision, explaining that the key question was to consider whether the investigation was “sufficient” in the circumstances and not whether too much information had been gathered. Unless it could be said that the previous incidents in 2010 and 2012 involving Ms Pillar were irrelevant and could not have been a factor in the decision to dismiss, there was no reason to exclude them from the investigation report or to conclude that their inclusion meant that the investigation had not been reasonable.

The issue of whether previous misconduct – and particularly misconduct which resulted in a warning that has since expired – should be taken into account when deciding to dismiss an employee has garnered a lot of debate over the years. The position has been settled somewhat following the Court of Appeal decision in Airbus Ltd v Webb. In that case it was confirmed that an employer could not rely on an expired warning as a “totting up” measure which could be used to dismiss an employee for an offence which would not otherwise justify dismissal. However, the Court did find that an expired warning could be taken into account when deciding on the sanction for an employee who had committed a dismissable offence. In the Airbus case it was held that the employer fairly dismissed one employee, who had a previous expired warning, out of a group of five employees who were all guilty of the same misconduct (even though the others, who all had good disciplinary records, were only given final written warnings).

The Pillar case takes the principle set down in the Airbus case even further, by confirming that employers are also allowed to consider previous misconduct – even if no disciplinary action was taken – when making decisions on the appropriate sanction for a dismissable offence.

For employers who have taken the time to carry out a full and thorough investigation process it will come as some relief that their investigations are unlikely to be criticised for containing too much information. There is, however, a clear balance to be struck when preparing investigations reports and care should be taken to ensure that only relevant information is included. The fact that the employment tribunal found as it did highlights that references to an employee’s previous misconduct which have not resulted in “live” disciplinary warnings should be treated with caution and should only be factored into investigations if they are truly relevant to the conduct in question.

The case also serves as a helpful reminder of what a reasonable investigation should comprise of, and the scope of information to be considered. Usually it will involve:

  • Interviewing witnesses of the alleged misconduct
  • Considering the documents and evidence available (such as email correspondence, instant messages or CCTV footage)
  • Gathering information on the employee’s length of service, performance and disciplinary record
  • Identifying whether there is a precedent for dealing with the misconduct in question based on similar situations that may have arisen in the past
  • Reviewing policies and considering whether the employee would have been aware that their actions amounted to misconduct
  • Preparing an investigation report

As can be seen from the Pillar case, the investigation can often be the determining factor in whether a tribunal finds a dismissal to be fair or otherwise and it is vital that the investigation process is managed in a fair and reasonable manner.

If you would like any further information or advice on the handling of disciplinary proceedings or employee misconduct, please contact a member of the Burness Paull Employment team.

A full update in relation to various other recent changes in UK Employment Law will be presented at the Annual Employment Law Conference on November 9, 2017.

Tricia Walker, Partner

Grant McGregor, Solicitor