Professional December 2017/January 2018


Decision making processes and less favourable treatment

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decision in three cases

NHS 24 v Pillar The Employment Appeal Tribunal (EAT) has considered whether a disciplinary investigation can be regarded as unreasonable where the investigation is too thorough. The employee was employed as a nurse practitioner from July 2002 to September 2014. She was required to take telephone calls from the public and triage them, deciding on the most appropriate next care step. A patient safety incident occurred in December 2014 when the employee failed to consider a ‘red flags’ when making her decision as to where a patient should be directed. The employee sent the patient, who was describing symptoms of a heart attack, to an out of hours general practitioner (GP) service and did not make an emergency ambulance call. The patient attended the GP service and suffered a heart attack. The employer commenced disciplinary procedures. During the investigation, a management report was created to contain the information uncovered. The report contained details of two previous patient safety incidents that had not been subject to disciplinary action. One of the incidents related to a very similar scenario where ‘red flags’ were not considered when directing a patient who was describing heart attack symptoms. Following the two incidents, the

employee was put on a development plan and given additional training and support. The outcome of the disciplinary procedure was to dismiss the employee. She claimed unfair dismissal as the investigation report was unreasonable due to containing details of incidents not subjected to disciplinary sanctions. ...the investigation report contained too much material The Employment Tribunal (ET) decided the employer had acted unreasonably by including the previous incidents within the investigation report when they had not disciplined for these. They suggested that the information regarding the further training and support were relevant to the investigation but could have been set out in the report without mentioning the incidents. When looking at whether the decision to dismiss was reasonable, the ET found that it was because of the materials available to the decision maker at the time. However, because the investigation was not within the band of reasonableness, the dismissal was unfair. The employer appealed against the decision. The EAT allowed the appeal and substituted the decision to find the

dismissal was fair. The EAT reiterated that the focus of the tribunal when looking at the investigation stage is to determine whether the investigation is sufficient enough. In this case, there was no question about the sufficiency of the investigation, rather that the investigation report contained too much material. Only in extreme cases, said the EAT, would an investigation be unfair where it was too wide or overzealous. When looking at the fairness of the decision to dismiss, the EAT highlighted that there is a distinction between including information about previous events in an investigation report and relying on past misconduct when deciding whether to dismiss or not. The dismissing officer themselves should consider how they are treating the background information and the importance this has in their decision- making process. Royal Mail Ltd v Jhuti The Court of Appeal have examined whether a dismissal is automatically unfair when the decision maker was unaware of the history of protected disclosures and had been intentionally misinformed by the employee’s line manager. The employee commenced a six- month trial period in the MarketReach department. The department was tasked


| Professional in Payroll, Pensions and Reward | December 2017/January 2018 | Issue 36

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