London Ambulance Service NHS Trust v Small

In a conduct dismissal case, an employment tribunal must assess the employer’s investigation, belief and grounds for that belief at the time of dismissal. It must then decide whether dismissal was within the range of reasonable responses. The tribunal must not re-hear disputed allegations or substitute its own findings about the employee’s conduct for the employer’s decision.

Findings about what the employee actually did may be required for contributory fault, but that is a separate issue which arises only after unfair dismissal has been established. Keeping the issues and their factual findings separate helps prevent substitution errors.

The Trust summarily dismissed Mr Small, an ambulance paramedic, for gross misconduct following a complaint about his treatment of an elderly patient. The Employment Tribunal found the dismissal procedurally and substantively unfair and assessed contributory fault at 10%.

The Employment Appeal Tribunal, in UKEAT/0395/07/MAA, upheld the finding of unfair dismissal, although it remitted contributory fault for reconsideration. The Trust appealed, contending that the tribunal had made its own findings about the incident and thereby substituted its view for that of the disciplinary panel.

The central issue was whether the tribunal had applied the correct limits of its review of a conduct dismissal.

Appeal allowed. The Employment Tribunal erred in law and the issue of liability was remitted for a re-hearing before a differently constituted tribunal.

1. The applicable inquiry was that stated in British Home Stores Ltd v Burchell [1978] IRLR 379 and affirmed in Post Office v Foley [2000] ICR 1283. The tribunal had to assess whether the Trust had reasonably investigated, genuinely believed, on reasonable grounds, that Mr Small was guilty of misconduct, and whether dismissal was a reasonable response. Its task was to review the fairness of the employer’s decision at the time it was made.
2. The tribunal wrongly made and used its own findings on disputed aspects of Mr Small’s conduct, including matters concerning the history taken and the patient assessment. Those findings were then used to conclude that the Trust lacked reasonable grounds and a genuine belief. That was an impermissible substitution of the tribunal’s decision for that of the employer, contrary to the approach reflected in Morgan v Electrolux Ltd [1991] ICR 369.
3. The tribunal’s stated reasons for procedural unfairness could not sustain that conclusion. The timing of the investigation was not unreasonable on the facts, the colleague’s evidence had not been ignored, and the tribunal misunderstood the disciplinary panel’s use of the medical report.
4. Actual findings about the employee’s conduct were relevant to contributory fault, which the tribunal itself had to determine on the evidence. They were not findings for the employer to make. As contributory fault arose only if dismissal was unfair, the issues required separate and sequential fact-finding. The court observed that keeping such findings separate may help avoid substitution errors.
5. The Court of Appeal could not itself determine liability because a properly directed tribunal might reasonably decide the issue either way. Liability was therefore remitted for a full re-hearing.

• Court of Appeal (Civil Division): allowed the Trust’s appeal in [2009] EWCA Civ 220, held that the tribunal had substituted its own findings for the employer’s decision, and remitted liability for re-hearing.
• Employment Appeal Tribunal: in UKEAT/0395/07/MAA, upheld the finding of unfair dismissal but allowed the Trust’s appeal on the assessment of contributory fault and remitted that issue.
• Employment Tribunal: found the dismissal procedurally and substantively unfair and assessed Mr Small’s contributory fault at 10%.