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 EWCA Civ 220,  IRLR 563,  All ER (D) 179 (Mar), Court of Appeal - Anya Palmer
In London Ambulance Service NHS Trust v. Small  EWCA Civ 220, the Court of Appeal has reiterated that tribunals hearing unfair dismissal claims must not engage in a re-hearing of the facts. The Court of Appeal rejects the EAT's view that the findings made by the ET in this case were permissible because the employer contended in the alternative that the claimant had contributed to his dismissal by his conduct.
Frederic Reynold QC and Anya Palmer acted for the London Ambulance Service NHS Trust.
The claimant was a paramedic who was dismissed for gross misconduct in respect of his handling of a particular elderly patient. The patient's daughter made a complaint to the respondent about his treatment of her. Her complaint was investigated, the claimant was interviewed and a number of serious concerns emerged about his treatment of the patient. The claimant was then subject to disciplinary proceedings. The patient's daughter and son-in-law gave evidence at the disciplinary hearing. The claimant was allowed legal representation. His solicitor cross examined the daughter and son-in-law. One particular concern was that the claimant had not found out or recorded that the patient suffered from diabetes and high blood pressure. The claimant's solicitor contended that the daughter and her husband had not told the claimant about these conditions. The daughter was adamant that she had told him, because she thought it might be important. The dismissing officer preferred the daughter's evidence. He concluded that the claimant had failed to take a proper history, failed to examine the patient properly, failed in getting her to walk downstairs rather than carry her when she was in severe pain, failed to administer pain relief and failed to keep a proper record of the patient's condition. Further, during the journey to the hospital the patient had shown signs of critical hypoxia and the claimant had failed to act on that by administering high flow oxygen and putting on a blue light. The dismissing officer concluded that these failings were so serious that the appropriate sanction was dismissal notwithstanding that the claimant had 13 years' service and an unblemished record. The claimant exercised his right of appeal but the decision to dismiss was upheld.
An employment tribunal in Watford chaired by Employment Judge Green found that the claimant had been unfairly dismissed. The tribunal disagreed with most of the dismissing officer's conclusions. It agreed with a few of them but concluded that these on their own were not sufficiently serious that dismissal for these alone would have been within the range of reasonable responses.
Reminding itself that it must not substitute its own view, the tribunal dealt with those of the respondent's conclusions with which it disagreed by concluding that the dismissing officer did not have reasonable grounds for reaching those conclusions. However, in order to reach this conclusion the tribunal made certain findings of its own about the events on the night in question. For example, the tribunal made a finding of fact on the balance of probabilities that the patient's daughter had not told the claimant that her mother suffered from diabetes and high blood pressure.
The tribunal further concluded that the dismissal was procedurally unfair in any event. One reason for this was that ten weeks had passed between the incident in question and the Claimant being interviewed about it. The tribunal accepted a submission based on A v. B  IRLR 405 that delay in an investigation might in itself render a dismissal unfair. (In A v. B the delay between the conduct and the disciplinary hearing was two and a half years.)
The tribunal assessed the claimant's contribution to the dismissal at only 10%. In reaching that conclusion, the tribunal ignored the Respondent's submission that it was relevant to consider a series of admissions made by the claimant in cross examination about his failings on the night in question. The fact that the Claimant had made those admissions was not even recorded by the tribunal and they were not taken into account when assessing the Claimant’s contribution.
Employment Appeal Tribunal
The EAT (UKEAT/0395/07) rejected the respondent's primary appeal which was that the tribunal had impermissibly substituted its views for those of the respondent. The EAT held that the tribunal was obliged to make the findings of fact that it did in view of the respondent's submission that if the dismissal was found to be unfair, the claimant himself had caused or contributed to it by his conduct. This obliged the tribunal to make its own findings on the balance of the probabilities as to the claimant's conduct. The EAT held that the ET had kept these issues separate.
The EAT also upheld the conclusion that the dismissal was procedurally unfair.
The EAT allowed an appeal against the assessment of contribution at 10%. The EAT agreed with the respondent that the claimant's admissions as to his failings were relevant and should have been taken into consideration by the tribunal when assessing contribution. The EAT remitted this matter to the same tribunal for reconsideration indicating that in its view contribution should have been at least 50%.
The respondent appealed to the Court of Appeal on the question of liability.
The Court of Appeal
The Court of Appeal in a unanimous judgment given by Mummery LJ set aside the decisions of the ET and the EAT on liability and remitted the case for hearing by a different tribunal.
As to the timing of the investigation interview, the Court of Appeal rejected the ET's finding, upheld by the EAT, that the lapse of 10 weeks before the Claimant was interviewed could render the dismissal unfair. The Court of Appeal noted that it can time to make reasonable enquires and it did not regard the timescale in this case as unreasonable.
As to the other two grounds given for finding procedural unfairness, they were demonstrably wrong and so the finding of procedural unfairness was set aside.
The Court of Appeal agreed with the respondent that despite repeatedly reminding itself that it must not substitute its view for that of the respondent, that was exactly what the tribunal had done. In considering the question of liability, the tribunal should not have made findings of its own as to the claimant's conduct on the night in question, including matters that were in dispute at the disciplinary hearing. For example it should not have made a finding that the daughter had not told the claimant that her mother was diabetic. At the liability stage the tribunal should have confined its consideration of the facts to facts relating to the employer's handling of the dismissal: the genuineness of the employer's belief, and the reasonableness of the grounds for that belief.
Further, in using its own findings of fact to support its conclusion that the Respondent had no reasonable grounds for its belief about Mr Small’s conduct. the tribunal did substitute itself for the Respondent as decision maker.
The Court of Appeal reminds tribunals of the importance of not slipping into the substitution mindset, particularly in conduct cases.
Separate and sequential fact finding
The Court of Appeal agreed with the EAT that the ET was bound to make findings of fact about the Claimant's conduct for the purpose of deciding whether and to what extent he caused or contributed to his dismissal by his conduct. However, the Court did not agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substation. Its findings of fact about the Claimant's conduct seeped into its reasoning about the unfairness of the dismissal.
The Court of Appeal notes that while it is not its place to tell tribunals how to write their judgments, as a general rule it might be better practice in unfair dismissal cases for ETs to keep their findings for liability purposes separate from any findings on disputed issues that are only relevant to other matters such as contribution (or discrimination). "Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication."