In the recent case of NHS 24 v. Pillar an employer dismissed the Claimant nurse practitioner for gross misconduct after she was involved in her third Patient Safety Incident (PSI). Training had been used to address previous similar incidents and disciplinary action was not taken. The main question raised in this case was to what extent, if any, should the employer have taken into account those previous similar incidents when considering the appropriate sanction in relation to this third PSI. They weren't considered under the disciplinary procedure at the time, so could they be included?

Facts

Ms Pillar was employed by NHS 24 (NHS) as a nurse practitioner. She was involved in a PSI in August 2010 and then again in July 2012. Neither of these PSIs resulted in disciplinary action being taken against Ms Pillar. She was instead the subject of a development plan and additional training. In December 2013, she was dismissed following a third Patient Safety Incident. These previous PSIs were included in the investigation report in relation to the third PSI, for which Ms Pillar was dismissed.

The Employment Tribunal (ET) held that the NHS had been entitled to treat the third PSI as gross misconduct and the decision to dismiss was reasonable on the basis of the material before the dismissing manager. Notwithstanding this, the ET ultimately held that Ms Pillar's dismissal was unfair as the investigation should not have included details of the two previous PSIs. It would have been sufficient to set out the training that she had received as a result of those PSIs without mentioning the PSIs themselves. The two initial PSIs should not have been mentioned as they did not result in disciplinary action. The NHS appealed to the Employment Appeal Tribunal (EAT).

Decision

The EAT found that the NHS's decision to dismiss was reasonable and fair, despite the procedural defects identified by the ET. The EAT stated that the PSI in question was in itself dismissal-worthy, and the facts of the previous PSIs only served to demonstrate the Claimant's incompetence.

Formal warnings

This case is fact specific and employers will be left wondering how best to deal with previous performance or misconduct issues and, in particular, formal warnings. It is interesting to note that Ms Pillar would have been in a stronger position had her employer relied on an expired formal warning.

The ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) suggests that first written warnings should be "live" for six months. For final warnings, this increases to 12 months. The Code does not forbid imposing time-unlimited warnings, though this would be a question of fairness.

The case of Thomson v. Diosynth Ltd [2006] confirms that expired warnings should not be taken into account when making decisions in relation to subsequent misconduct. Employers can, however, take note of expired warnings when considering the penalty to impose in relation to such misconduct once the decision has been reached as to whether the act complained of is indeed gross misconduct.

Expired warnings and those given for unrelated incidents are not irrelevant when deciding the reasonableness of dismissal, as they may show a pattern in an employee's behaviour. However, as pointed out in the case of Airbus Ltd v. Webb [2008], such previous warnings must not be the sole factor that "tips the balance" when deciding whether an employee should be dismissed.

The case of Stratford v. Auto Trail LTD [2016] confirmed that relying on previous expired warnings as the sole and primary reason to dismiss an employee is most certainly not permissible.

As always, ultimately, the test of fairness and reasonableness as set out in section 98 of the Employment Rights Act 1996 must be applied on a case-by-case basis. To ensure compliance with section 98, a few simple steps can be taken:

1. Properly document all warnings. Despite the findings of the Pillar case, informal warnings should be given with caution since they do not follow the framework of formal warnings – they cannot be appealed and reliance on them in future cases of misconduct may be questionable.
2. Ensure that the terms, consequences and expiry date of every formal warning are stated clearly.
3. Make sure that disciplinary policies and staff handbooks make it clear that expired warnings may still be considered as context in relation to future disciplinary proceedings.
4. Ensure the flexibility of warning procedures. For example, the period for which warnings may be live does not have to be the same for every warning. In circumstances where the misconduct currently in question is substantially the same as misconduct for which a previous warning was given, the length of any new warning may be longer in recognition of this.
5. Managers must know the clear difference between, on the one hand, considering previous warnings when the current offence is dismissal-worthy of itself and, on the other, taking account of expired warnings for the sake of increasing a sanction to justify dismissal.