Can an employer take into account previous incidents during an investigation for gross misconduct?

11 October 2017


Under s.98 of the Employment Rights Act 1996 (ERA 1996), a dismissal for misconduct will be unfair unless:

•        The employer believed the employee to be guilty of misconduct.

•        The employer had reasonable grounds for believing that the employee was guilty of that misconduct.

•        At the time it held that belief, it had carried out as much investigation as was reasonable.

NHS 24 v Pillar

In NHS 24 v Pillar, Ms Pillar was employed as a Nurse Practitioner and her duties consisted of taking telephone calls from members of the public and asking appropriate questions to determine the patient's medical priority. The employee was dismissed for gross misconduct following an incident in December 2013, whereby the employee failed to ask appropriate questions and referred a patient to an out-of-hours GP service instead of calling 999, despite the patient suffering a heart attack. The employee had also been responsible for two earlier incidents, one in August 2010 and one in July 2012. Neither of those earlier incidents led to disciplinary action and instead the employee received additional training.

During the disciplinary process, the employer considered the previous incidents within the investigation report for the purpose of the disciplinary hearing which led to the employee's dismissal. The employee pursued a claim of unfair dismissal and argued (amongst other things) that it was unfair for the investigating officer to have included the earlier incidents when they had not led to disciplinary action.

The employment tribunal found the dismissal unfair, finding it had been unreasonable for the investigation to include details of the previous incidents. In the tribunal's view, it would have been sufficient to include details of the training that the employee had received as a result of the earlier incidents, but details of such incidents should have been omitted since they had not given rise to disciplinary proceedings. The tribunal also found that there was a lack of transparency as the employee was not informed that further incidents could be viewed more seriously.  

The employer appealed and the Employment Appeal Tribunal ("EAT") overturned the tribunal's decision. The EAT considered a number of legal tests and in a nutshell, the EAT found that the tribunal were incorrect to find that the dismissal was procedurally unfair because the investigation had been, in effect, too thorough. The fact that the earlier incidents were addressed solely through training and development did not, in the EAT’s view, create any expectation that future incidents would not be regarded more seriously. Further, the EAT found that previous incidents were relevant to patient safety should not have been withheld from the decision-maker. The EAT highlighted that it is for the investigator to put together all relevant information and then it would be for the decision-maker to decide what to do with it.

Ultimately, the EAT held that it is the decision-maker’s state of mind that should be considered when a tribunal is assessing whether dismissal was within the range of reasonable responses, and the reasonableness of an investigation is relevant only where it results in an absence of proper information being put forward to the decision-maker.

This case is useful guidance as to whether past conduct can be taken into account by an employer when deciding to dismiss an employee.

At Gepp & Sons, our Employment Team will be happy to assist you with any aspect of employment law. If you seek advice, please contact our Head of Department, Alexandra Dean, on 01245 228141 or via

This is not legal advice; it is intended to provide information of general interest about current legal issues.