Taking Into Account Disciplinary Warnings

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