Employment Law Case Update: NHS v Pillar

Ms Pillar was a Nurse Practitioner employed by NHS 24. Her role consisted of taking telephone calls from members of the public and triaging them by asking appropriate questions to determine their medical priority and the appropriate clinical outcome.

In December 2013 Ms Pillar directed a patient describing symptoms of a heart attack to an out of hours GP rather than the emergency services. She was dismissed for gross misconduct following a Patient Safety Incident (PSI).

She had been responsible for two earlier PSIs because of her triage decisions, the first occurring in August 2010 and the second in July 2012. Neither of those earlier PSIs had led to disciplinary action. They were instead dealt with by providing a development plan and additional training to Ms Pillar. The two incidents were included in the report compiled by the investigating officer for the purpose of the disciplinary hearing that led to Ms Pillar’s dismissal.

Ms Pillar brought a claim for unfair dismissal, contesting, among other things, that it was unfair for the investigating officer to have included the earlier PSIs when they had not led to disciplinary action.

The Employment Tribunal held that the employer had been entitled to treat the latest PSI as gross misconduct in view of the risk to patients, and that the decision to dismiss was reasonable on the basis of all the material before the decision-maker (which included the two earlier PSIs).

However, the Tribunal found the dismissal unfair, on the basis that it had been unreasonable for the investigation to include details of the previous two PSIs. In the Tribunal’s view, it would have been sufficient to include details of Ms Pillar’s training following her previous PSIs, but the detail of the incidents themselves should not have been included, since they had not given rise to disciplinary proceedings.

Ms Pillar had also not been made aware that further similar PSIs were likely to be considered as gross misconduct, and there was a lack of transparency as to whether anything other than a further development plan was being considered. The Tribunal therefore viewed the dismissal as procedurally unfair. They further stated that Ms Pillar’s conduct had contributed to her dismissal and that her compensation should be reduced by 70%, but the Tribunal did not explicitly consider any Polkey deduction.

NHS 24 appealed the Tribunal’s decision, and the Employment Appeal Tribunal considered the investigation as unusual as it contained too much detail, rather than not enough. The EAT overturned the finding of unfair dismissal arguing this was not a case of totting up warnings but of a lack of clinical competence.

This case is a useful clarification for the extent to which past conduct can be taken into account by an employer when deciding to dismiss.

This article is from our weekly Employment Law Newsletter published on 09/11/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

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