Handle with care

London Ambulance Service NHS Trust v Small

In unfair dismissal cases, tribunals have to decide if the employer genuinely believed on reasonable grounds that the employee was guilty of misconduct and whether dismissal was a reasonable response to it. In London Ambulance Service NHS Trust v Small, the Court of Appeal advised tribunals to concentrate on how the employer handled the dismissal, rather than making its own findings about the conduct of the claimant when deciding whether the dismissal was fair.

Basic facts

Mr Small had worked for the Trust since 17 August 1992 in a number of capacities, most recently as a paramedic with an unblemished record. However, on 12 July 2005 he was called to the home of an elderly woman with severe abdominal pains who died soon after of heart disease.

On 25 July the patient's daughter complained about the crew's treatment of her mother, notably that she was made to walk down stairs, that Mr Small made an inappropriate remark about her incontinence and had criticised the daughter for not giving her mother pain relief.

Mr Small was interviewed by the Trust on 19 September and suspended along with Mr Crafer, the other crew member, on 3 October. In December the investigating officer recommended that disciplinary charges be pursued and the hearing eventually took place in March 2006.

Mr Small was dismissed on 27 March and then claimed unfair dismissal.

Tribunal and EAT decisions

The tribunal criticised the Trust for the long delays in the procedure that it had followed and for failing to take Mr Crafer’s evidence on board. It concluded that the Trust would not have dismissed Mr Small, had it followed a fair procedure.

On the issue of substantive unfairness the tribunal concluded that the dismissal was for the potentially fair reason of conduct. But, applying the range of reasonable responses test, the tribunal said that the Trust could only show a genuine belief in Mr Small’s alleged misconduct on three of the nine grounds that it had considered. Given his long service and unblemished record, the decision to dismiss was therefore not a reasonable response in the circumstances.

As it had found that Mr Small had failed in some of his duties, the tribunal said that he had contributed to his dismissal, but only by 10 per cent

And the EAT agreed that the dismissal was unfair, saying that the tribunal had adopted the correct approach but remitted the matter of contributory fault to the tribunal because of the failings to which Mr Small had himself admitted.

Court of Appeal decision

But the Court of Appeal disagreed. In terms of procedural unfairness, it said that although it was obviously good practice to investigate suspected misconduct promptly, it did not think that the timetable followed by the Trust was unreasonable. Nor had it ignored Mr Crafer’s evidence.

Instead, it said that the tribunal had fallen into the trap of substituting its own view for that of the employer. It should have confined its consideration of the facts to those relating to the Trust’s handling of the dismissal, and not made its own findings of fact about issues that had actually been in dispute during the internal proceedings themselves.

It advised that, as a general rule in unfair dismissal cases, tribunals should keep their findings of fact on the issue of whether the dismissal was unfair separate from their findings on disputed facts.

The tribunal had, therefore, failed to apply the law correctly. It “should have focused its fact finding on the Trust's conduct of Mr Small's dismissal. Instead, it concentrated on the conduct of Mr Small and it then used findings of fact in order to substitute its views for the grounds on which the Trust actually formed its belief and acted when it took the decision to dismiss. The ET should only have used its findings about the conduct of Mr Small on the separate issue of whether there was contributory fault on his part”.

It therefore decided that the case should be remitted for re-hearing by a differently constituted tribunal.