The employer an NHS Trust held a disciplinary meeting, upheld the complainant's allegations and dismissed the employee. An employment tribunal(ET) heard widely differing accounts of what had happened and believed the paramedic's version of the events were more accurate than those accepted by the employer.

The tribunal also had to decide whether the trust had carried out a reasonable investigation, whether it genuinely and reasonably believed that the claimant a Mr Small was guilty of misconduct and whether the dismissal was fairly conducted and proportionate.

The tribunal decided that the Trust had shown procedural and substantive unfairness against its worker and declared the dismissal as unfair. The Employment Appeal Tribunal (EAT) agreed. The tribunals believed that only interviewing Mr Small ten weeks after the event left him at a serious disadvantage (Lord Mummery in the Court of Appeal did not believe there was any disadvantage. But he also did not ask why the trust left it that long to interview the paramedic).

Many employers would have now balked at spending even more money on lawyers, barristers and sundry hangers on in order to pursue a further appeal but the London Ambulance Service NHS Trust, funded by a generous public went for another round in the Court of Appeal(CA).

The Trust argued that contrary to the law the ET substituted its own view of the facts relating to Mr Small's conduct for the view formed by the Trust's disciplinary panel (which having decided on 'facts' amounting to misconduct, then used these to dismiss the worker).

The ET itself made findings of fact about Mr Small's conduct, concluding that the Trust had some grounds for believing that Mr Small was culpable, e.g. for failing to complete a new Patient Record Form to a reasonable standard(which was however complicated and only given to Mr Small that day), failing to administer pain killers and making an ill-considered remark that the tribunal did not consider as having been intended to offend. The tribunal dismissed a number of other allegations against Mr Small concluding:

"…It seemed to us from the evidence before the Respondent's (employer's)panel that they could not have held a genuine view on reasonable grounds in the culpability of the Claimant......."

The ET had dealt with each allegation and concluded that the Trust had not shown that they held a genuine belief on reasonable grounds that Mr Small was guilty of misconduct.

The Court of Appeal in anulling the ET and EAT's verdicts did not justify itself by quoting the Act of Parliament. The Court instead relied on restating its own precedent, of the 'range of responses' rule.

The Act of Parliament is however interesting in that it appears to give no justification for the Court of Appeal's 'range/band of responses' interpretation. The relevant law in the Employment Rights Act 1996 s. 98 says:

(4) ...the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether ... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case

In using section a) to develop the rule of the 'range of reasonable responses' the CA seems to have forgotten section c) that the decision about dismissal needs to be equitable i.e. fair. It does not mean as Lords Denning and Mummery would have us believe (according to the examples given by Lord Mummery in Foley v PO)that in between extremes of the worker who burns down his workplace and the one sacked for greeting his employer, there is a world of acceptable dismissals by employers. The ERA does not support the preventing of employment tribunals from examining the facts. It might be said that the opposite is true, that 'equity and substantial merits' encourage an examination by a tribunal of whether an employer had reason to accept allegations made as fact.

The Act does not mention anything about taking a straw poll of employers to see if a 'reasonable' one of them can be found to justify the dismissal. The Act only states that the tribunal should make a judgement as to the reasonableness of the dismissal. This was the view of the EAT in Hadden v Van Den Bergh Foods. The EAT there said that the ERA was clear enough as to what was wanted, and this was simply a test of reasonableness. The EAT stated further that it was regrettable that 'so many words have been spoken about the interpretaion of a section that is so clear and unambiguous'. The EAT was overruled by the Court of Appeal.

In this case Lord Mummery criticised the ET for:

making "its own findings of fact about the conduct of Mr Small, including aspects of it that had been disputed at the disciplinary hearing. For example, the ET found that the daughter had not told Mr Small that her mother was hypertensive and diabetic and that there was no evidence that he had failed to carry out a risk assessment (This was crucial to the decision to dismiss Mr Small).

According to Lord Mummery the ET used 'its findings of fact to support its conclusion that the Trust had no reasonable grounds for its belief about Mr Small's conduct and therefore no genuine belief about it. By this process of reasoning the ET found that the dismissal was unfair. This amounted to the ET substituting itself and its findings for the Trust's decision-maker in relation to Mr Small's dismissal.'

"It was not the role of the ET to conduct a re-hearing of the facts which formed the basis of the Trust's decision to dismiss. The ET's proper role was objectively to review the fairness of Mr Small's dismissal by the Trust".

Lord Mummery is thus forcing the tribunal to exclude itself from judging disputed facts and only look at the 'fairness' of the decision to dismiss based on the facts as decided upon by the employer. If the employer is thus careful not to display open bias and keeps an eye on procedure then he is free from the intervention of a tribunal.

The employer is moreover free to dismiss on a whim as long as this might be deemed acceptable to any hypothetically 'reasonable' employer.

Lord Mummery believes it is not 'reasonable' to allow an employment tribunal to investigate disputed facts leading up to an employer's decision to dismiss. It is not however unknown for an employer to manipulate disciplinary proceedings so that findings point in the desired direction. It is no secret that there has grown up a whole industry of finding various 'work arounds' for different dismissal scenarios. The ET in this case "erred in law" only because the CA holds to an interpretation of the law strongly disputed even by senior judges, but promoted by Lord Denning and introduced during the Thatcher era. A cursory reading of the ERA shows that the Court of Appeal's interpretation needs revising.

According to Lord Denning: "The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him." (British Leyland v Swift 1981)

This might be looked at from a different angle in 2009. If a reasonable employer might have decided not to dismiss, then an employment tribunal should be the arbiter needed to decide on the fairness of any dismissal.

There is a possibility of an appeal under Article 6 of the Human Rights Law of a right to a fair trial.

The transcript of this case can be found  Here

Another recent Court of Appeal decision of interest to workers is   Nomura v Madarassy   whereby the bringing of disability discrimination claims has become considerably more difficult.




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