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When conducting a disciplinary investigation into an employee’s suspected misconduct, it may be open to an employer to take into account past conduct which had not attracted disciplinary sanctions at the time.

Ms Pillar was a Nurse Practitioner for NHS 24. Her role involved the telephone triage of patients to ensure that they were directed towards care appropriate to their medical priority. Ms Pillar was responsible for two Patient Safety Incidents (also known as PSIs) in August 2010 and July 2012 as a result of her triaging decisions. NHS 24 elected to deal with these PSIs by offering Ms Pillar development plans and additional training rather than by treating them as disciplinary issues.

After a further PSI arose, a disciplinary investigation was commenced regarding Ms Pillar’s conduct. The investigating officer’s report into the most recent PSI made reference to the two earlier PSIs. In December 2013, following a disciplinary hearing, Ms Pillar was summarily dismissed for gross misconduct.

Ms Pillar brought a claim for unfair dismissal, alleging that the investigating officer should not have taken into account previous conduct which had not led to disciplinary action at the time.

The Employment Appeal Tribunal held that Ms Pillar’s dismissal had been fair. The decision to dismiss had been reasonable on the basis of all of the evidence before the decision-maker, and that included the previous PSIs. It was relevant material, so there was no basis on which to conclude that it should not have been presented to the investigator.

The EAT distinguished between this kind of situation and an expired warning. The expiration of a warning gives an employee a “false expectation” that it would not be determinative in a future disciplinary investigation; Ms Pillar had no such expectation in relation to her previous PSIs. There was no indication of bias, and Ms Pillar had not been denied any opportunities to respond. Therefore, the dismissal was within the range of reasonable responses.

This decision means that it is arguably better to deal with some conduct issues informally to begin with, rather than conducting a disciplinary process and issuing a warning with an expiration date. This seems to leave employers more scope to bring those incidents in as relevant material in future disciplinary investigations to justify findings of gross misconduct.

NHS 24 v Pillar UKEATS/0005/16

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What can employers do to support women returning to work?

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As part of City Giving Day, BDBF LLP is working with Smart Works, a charity supporting women returning to the workplace. Here, Emily Plosker, a senior associate at Brahams Dutt Badrick French LLP, looks at what employers can do to help women re-entering the job market.

Today marks City Giving Day – a day for businesses in the City of London to celebrate and promote the charitable and community work that they do. Hundreds of businesses take part with a vast array of fundraising activities, all for a number of different charities, and all dressed in red!

For example, we’re supporting Smart Works, which provides unemployed women with a free styling session, interview outfit and interview coaching to boost their confidence before interview.

As a working mum, I know that returning to work after a period at home with your baby is a daunting prospect. And as an employment lawyer, I am also aware of some of the errors made by employers as employees’ transition back into the work place.

Here are my tips to help employers manage a successful return to work for their employees, who may be returning to the workplace after maternity leave or a career break.

Flexible Working

Returning to work may involve a conversation about flexible and/or part-time working arrangements. Modern technology now allows for remote working, meaning that businesses can adapt to their employees’ modern lives, and make cost efficient use of office space.

When you receive a flexible working request an employer is obliged to deal with it and must give a decision within three months. It’s important that you listen to each request, think creatively about how a new working model could work and not worry about “setting a precedent”.

The way you deal with a flexible working request can really set the tone and atmosphere for your employee’s return (for better or worse). A content employee is beneficial for business.

Breastfeeding

Some women may still be breastfeeding when returning to work and so you may need to discuss the practicalities of this (e.g. use of a private room to express and fridge space for expressed milk, etc.). Remember – a toilet is not good enough! It’s important that employers treat breastfeeding with sensitivity – it’s an emotionally charged subject so being open and non-judgmental is key.

Keep flexible working arrangements under review

Once a flexible working arrangement has been agreed, it is a good idea to keep it under review from both the employer and employee side. Employers should monitor whether their employees are getting into bad habits, such as regularly working on weekends or on their day off.

Once colleagues and clients know a person is contactable, the amount of contact will increase and inevitably eat into their family time. A review of whether the arrangement meets the demands of the business and the needs of the individual should be carried out after a reasonable period of allowing the arrangement to bed in, and then discussed.

It is possible to have a transparent and constructive conversation with an employee to try and find a solution which works for both parties. This way, an employer can avoid complaints being made about unfair and detrimental treatment since an employee’s return to work. Positive attitudes on both sides and keeping the lines of communication open are crucial to a successful return.

Offer training

A few months out of the market can feel like a lifetime – technological advances, company restructures or changes in regulations can all influence an employee’s confidence when returning to work.

It may therefore be worth discussing with a returning employee what gaps in knowledge or skills they are feeling particularly concerned about and whether internal or external training sessions to get them up to speed, would be beneficial. For women on maternity leave, this could be taken as a “Keeping in Touch Day” (KIT Day) prior to their return to work.

City Giving Day

BDBF is running a clothing drive and taking donations of women’s office wear, shoes, accessories, jewellery and cosmetics at its office at Monument Place. If you do not have any suitable items to donate but still want to show support, monetary donations are also very welcome. Here is Smart Works’ website if you want to know more: http://smartworks.org.uk/

A version of this article was published in Employment Solicitor Magazine on 26 September 2017

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