NHS 24 v Pillar

In a misconduct dismissal, the Burchell investigation requirement is principally concerned with whether the employer gathered sufficient material. An investigation should ordinarily place relevant background material before the dismissing officer, who then decides whether and how fairly to rely on it.

Procedural fairness under section 98(4) of the Employment Rights Act 1996 cannot be assessed in isolation. The tribunal must consider the procedural defect, its gravity and any prejudice to the employee alongside the substantive reason and the whole process. An isolated early defect which does not affect the reasonable dismissal decision will not necessarily make the dismissal unfair.

The claimant, a nurse practitioner employed by NHS 24, was dismissed for gross misconduct following a patient-safety incident involving an unsafe triage decision. Two earlier patient-safety incidents had led to training and development plans but not disciplinary proceedings.

The Employment Tribunal found that including details of the earlier incidents in the management report made the investigation unreasonable. It also found a lack of transparency at an early stage of the process and held the dismissal unfair, although it had found dismissal reasonable on the material before the dismissing officer. It reduced compensation by 70% for contributory conduct.

NHS 24 appealed. The central issues were whether the earlier incidents could properly be included in the investigation report, whether the identified procedural defect rendered the dismissal unfair, and whether a Polkey deduction required consideration.

1. Appeal allowed. The Employment Tribunal's finding of unfair dismissal was set aside and replaced with a finding that the dismissal was fair. The claimant's claim failed.

2. The Tribunal had acted inconsistently and perversely. It had found that the earlier incidents were relevant background material and that dismissal, on material including those incidents, fell within the band of reasonable responses. It could not rationally hold that the same relevant material should have been withheld or redacted from the investigation report merely because the earlier incidents had not attracted disciplinary action.

3. The investigative limb of British Home Stores v Burchell is directed principally to the sufficiency of the investigation. Although an overzealous or otherwise unfair investigation might in another case fail the test, the investigation here was comprehensive and the report properly supplied relevant material to the dismissing officer. Whether, and to what extent, past conduct should affect dismissal was for that officer.

4. The Tribunal also erred by treating an early lack of transparency as independently decisive. Under section 98(4) of the Employment Rights Act 1996, procedural matters and the substantive reason for dismissal must be assessed together. The Tribunal did not analyse the seriousness or prejudicial effect of the defect in the context of its findings that dismissal was reasonable, patient safety was central, and the claimant had not been denied an opportunity to present important mitigation or established bias.

5. The Polkey ground was academic. Had the unfairness findings stood, the issue of the likelihood of dismissal following a fair procedure would have required remission; it did not arise once the fair-dismissal finding was substituted.

• Employment Appeal Tribunal: Allowed NHS 24's appeal and substituted a finding that the dismissal was fair: [2017] UKEAT 0005_16_2104.
• Employment Tribunal: Found the claimant unfairly dismissed and reduced compensation by 70% for contributory conduct. The judgment was issued on 5 October 2015.