Unfair dismissal

An investigation is central to a fair disciplinary process: if you don’t carry out a reasonable investigation prior to dismissing an employee for misconduct, you risk an unfair dismissal claim.

But what is a reasonable investigation? This question has been considered recently by the Employment Appeal Tribunal in NHS 24 v Pillar.  Ms Pillar argued that her dismissal was unfair because the investigation report included details of two previous incidents of misconduct which had not led to disciplinary action.

The EAT accepted that an overzealous or otherwise unfair investigation could render a dismissal unfair. However, on the facts of this case, it was considered that the consideration of the previous incidents of misconduct was warranted due to their relevance to the third misconduct issue which had given rise to the disciplinary.

The EAT emphasised that there has to be a sufficient investigation of facts. It is for the officer hearing the disciplinary (and not the investigator) to decide how to treat background information, and to conclude whether it is fair and reasonable to place any reliance on it in deciding whether to dismiss.

When can previous incidents be taken into account?

Disciplinary hearers need to be careful about what they rely on when coming to a decision:

  • Active previous warnings can be taken into account, unless they appear to be ‘manifestly inappropriate’;
  • Expired warnings cannot be used to justify dismissal but can be considered if the circumstances justify dismissal anyway (e.g. when deciding whether to mitigate);

Previous misconduct which has not resulted in a warning can potentially be relevant depending on the circumstances, including what the employee was told at the time the previous misconduct was investigated.