East Of England Ambulance Service NHS Trust v Sanders

In assessing fairness under Employment Rights Act section 98(4), a tribunal must address whether the employer held a reasonable belief in the employee’s misconduct on reasonable grounds. It must then assess procedure and sanction without substituting its own view for that of the employer.

Gross misconduct does not make dismissal inevitably fair. Relevant mitigating circumstances may, exceptionally, make dismissal unreasonable. However, a tribunal must identify their relevance to the actual grounds of dismissal. It must not rely on matters that are irrelevant, including allegations concerning evidence which do not affect the employer’s material findings, or unrelated grievances, training, bullying, or the ordinary consequences of summary dismissal.

The claimant, an emergency medical technician, was summarily dismissed for gross misconduct after an incident involving inadequate patient care and findings that she had given an unreliable account of events. Her internal appeal failed.

An Employment Tribunal upheld her unfair-dismissal claim. It found the dismissal procedurally and substantively outside the range of reasonable responses, principally because the employer had not investigated alleged coaching of a colleague, had not resolved the claimant’s grievance, and had not considered matters said to mitigate dismissal.

The employer appealed. The central issue was whether those matters could properly support the Tribunal’s conclusion under section 98(4) of the Employment Rights Act.

1. Appeal allowed. The Employment Tribunal erred in law in holding the dismissal unfair. Its reasons contained a crucial omission: it made no finding whether the employer reasonably believed, on reasonable grounds, that the claimant had committed the misconduct identified in the dismissal letter.

2. The Tribunal had taken account of irrelevant considerations and failed to engage with relevant ones. The alleged coaching of the claimant’s colleague could justify further inquiry only if it affected the employer’s actual grounds for dismissal. The Tribunal did not explain how conflicts about remarks to the patient or family affected the material findings of inadequate assessment, misleading the GP, and failing to recognise a possible hip fracture.

3. Likewise, the claimant’s outstanding grievance could not establish procedural unfairness without an identified link to the disciplinary allegations or a reason why it could mitigate the serious patient-care misconduct. The Tribunal knew the grievance’s contents but did not explain such a link. Alleged lack of training and bullying by managers were also irrelevant on the Tribunal’s own findings.

4. The Tribunal misunderstood Brito-Babapulle. Gross misconduct does not make dismissal automatically fair, and a tribunal must consider the whole circumstances, including genuine mitigation. But the authority does not permit a tribunal to identify unadvanced or irrelevant mitigating features and thereby substitute its own view of sanction. The dismissal letter showed that the employer had considered a final warning but found that dishonesty had destroyed trust and confidence.

5. The claimant’s continued work under safeguards during the disciplinary process did not undermine the employer’s conclusion on trust and confidence. The safeguards themselves reflected the employer’s concern. The EAT indicated provisionally that the matter should be remitted to the same Tribunal to determine the remaining issue on the evidence already heard in light of this judgment.

• Employment Appeal Tribunal: Allowed the employer’s appeal and held that the Employment Tribunal had erred in its assessment of fairness.

• Employment Tribunal, East London: Judgment sent to the parties on 16 July 2015. It upheld the claimant’s unfair-dismissal claim, dismissed her disability-discrimination claim, and upheld a protected-disclosure detriment claim. The latter was not appealed.