The Employment Appeal Tribunal (‘the EAT’) has recently ruled in the case of NHS 24 v Pillar UKEATS/0005/16 that an investigation report will not have failed the Burchell test of reasonableness if the report contains too much information.
The Claimant in this matter, Ms Pillar, was a nurse practitioner who had been employed by the Respondent, the NHS, since 2002. Ms Pillar’s role consisted of her receiving telephone calls from members of the public and her providing guidance to those who required medical assistance. Ms Pillar was required to ask the caller relevant questions to establish whether the caller was classed as a medical priority and to form an assessment of what sort of action should be taken. The outcome of the call could mean that the caller only required simple telephone advice or, for the more serious matters, an ambulance to be called.
In December 2013, Ms Pillar received a call from a male who described himself as having chest pains consistent with having a heart attack. Ms Pillar advised the male to contact a Primary Care Emergency Centre (‘PCEC’) which was an out of hours GP service where a patient may be examined by a GP. The male subsequently had a heart attack and a 999 call was made for the male from the PCEC.
In the Management Case prepared by the PCEC it was noted that ‘Red Flags’ had not been taken down by Ms Pillar in her decision making when she received the initial call. The term ‘Red Flag’ was a common term for nurse practitioners to use when they recognised symptoms as being important and Ms Pillar had failed to take into account 12 Red Flags that had been presented by the caller, namely, the chest pain, weak arms and tingling in the arms.
Ms Pillar did not dispute the outcome of her call and admitted her error. However, due to the seriousness of this error, the NHS treated the incident as a Patient Safety Incident (‘PSI’) which led to Ms Pillar being subject to disciplinary action.
During the disciplinary action it was noted that Ms Pillar had been subject to two previous PSI incidents, one in August 2010 and one in July 2012.
The first PSI in August 2010 was similar to that of the incident in December 2013 as the patient had complained of cardiac symptoms. Ms Pillar had referred the patient to the PCEC where he later suffered from cardiac arrest. No disciplinary action was taken against Ms Pillar as a result of this incident but she was placed on an 8 week development plan. She successfully completed the development plan and resumed her normal role.
The circumstances of the second PSI in July 2012 were different to the one in 2010 but nevertheless the incident did make the NHS have concerns regarding Ms Pillar’s decisions. She was again asked to undergo a development plan but was not subject to any disciplinary action.
As a result of the disciplinary action that took place following the incident in December 2013, Ms Pillar was dismissed for gross misconduct.
Ms Pillar subsequently brought a claim against the NHS for unfair dismissal stating that it had been unfair for the investigating officer to have included details of her previous PSIs in the disciplinary action when these two previous incidents had not led to any disciplinary action.
The Employment Tribunal (‘the ET’) ruled that the NHS was able to find that the PSI in December 2013 amounted to an act of gross misconduct due to the risk that Ms Pillar presented to patients. It was also reasonable to dismiss Ms Pillar due to the material that had been before the decision maker. However, the ET ruled that Ms Pillar’s dismissal was unfair as it had been unreasonable for the disciplinary action to include the details of the previous PSIs when no previous disciplinary action had been taken against her in respect of these incidents. Furthermore, the NHS had not informed Ms Pillar that any further PSIs would be viewed as gross misconduct and there had been no guidance as to whether Ms Pillar was to be subject to a further development plan following the December 2013 incident. The ET therefore found that these two factors made the dismissal procedurally unfair.
The NHS appealed the ET’s decision to the EAT. Following the hearing in the EAT, Lady Wise overturned the earlier decision ruling that Ms Pillar’s dismissal was, in fact, fair. The EAT considered the test established in the case of British Home Stores Limited v Burchell which states that in order a for a dismissal to be fair, an employer must believe that the employee is guilty of misconduct, they had reasonable grounds for believing the employee was guilty of misconduct and at the time they held the belief, the employer had carried out a reasonable investigation. The EAT was not aware of any case where it had been suggested that an investigation had failed the Burchell test because it contained too much information. The EAT further held that the ET had been wrong to find the dismissal procedurally unfair due to the employer’s failure to inform Ms Pillar at an earlier stage of the implications of her receiving a further PSI. The EAT held that the ET had failed to explore the context of the procedural defect caused by Ms Pillar to be able to make a finding that the dismissal was unfair.
This is an interesting case for employers to consider as it demonstrates the importance of the Burchell test and shows that an investigation report cannot contain too much information. However, the information must still be relevant to the important issues concerning dismissal and the employer must be able to demonstrate that they have carried out a reasonable investigation.
By Emily Jones
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