Case law: Former misconduct at work can be relevant when deciding on sanctions, even if it did not result in disciplinary proceedings

Employers investigating alleged misconduct at work may be entitled to take into account previous misconduct if it is relevant background information, even if that misconduct did not result in disciplinary proceedings.

A nurse practitioner taking triage patient calls caused a Patient Safety Incident (PSI) by directing a patient to a GP rather than the emergency services, having failed to identify they were having a heart attack. Her employer carried out an investigation, held a disciplinary meeting, and decided to dismiss her.

The report produced in the investigation referred to two previous PSIs the nurse had been involved in, although no disciplinary action had been taken after either. She claimed that these should not have been referred to and/or taken into account when considering how she should be disciplined, and their inclusion meant that her employer had failed to carry out a 'reasonable investigation' as required by law. Her dismissal was therefore unfair.

The Employment Tribunal ruled that the reason for the dismissal was lack of clinical competence, and the previous PSIs were relevant when considering that. It said: "The fact that previous incidents had taken place was relevant material as part of the background information required by the respondent in deciding how to deal with the December 2013 PSI. The principal reason for the dismissal was the December 2013 conduct which was found to be a lack of clinical competence (paragraph 79). There was no "totting up" exercise. Further, the previous incidents provided relevant background context and any suggestion that decisions bearing on service user safety should be made without reference to the full context was unsound and dangerous."

The investigation had therefore been reasonable, and the dismissal was fair.

Operative date

  • Now

Recommendation

  • Employers investigating alleged misconduct at work may be entitled to take into account previous misconduct, even if it did not result in disciplinary proceedings, if they amount to relevant background context

Case ref: NHS 24 v Pillar UKEATS/0005/16/JW

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