London Ambulance Service NHS Trust v Small
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Lawrence Collins,Lord Justice Hughes |
| Judgment Date | 17 March 2009 |
| Neutral Citation | [2009] EWCA Civ 220 |
| Docket Number | Case No: A2/2008/0333 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2009 |
[2009] EWCA Civ 220
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Hhj Mcmullen QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Lawrence Collins and
Lord Justice Hughes
Case No: A2/2008/0333
UKEAT/0395/07/MAA
MR FREDERIC REYNOLD QC and MS ANYA PALMER (instructed by Beachcroft LLP) for the Appellant
MR STEPHEN MARSH (instructed by Messrs DH Law) for the Respondent
Hearing date: 6 th February 2009
Lord Justice Mummery:
The appeal
Did the London Ambulance Service NHS Trust (the Trust) unfairly dismiss Mr Simon Small, an ambulance paramedic, on 23 March 2006? The reason for dismissal was his conduct on 12 July 2005 when he and a colleague, Mr Crafer, attended an emergency call-out to an elderly patient. The Trust investigated a complaint by the patient's daughter. Following a disciplinary hearing the Trust summarily dismissed Mr Small for gross misconduct. After an unsuccessful internal appeal Mr Small brought and won an unfair dismissal claim in the employment tribunal (ET).
The Trust appeals from the order made by the Employment Appeal Tribunal (EAT) on 23 January 2008 rejecting its challenge to the ET's decision sent to the parties on 7 June 2007. The ET found that the dismissal was both procedurally and substantively unfair with only 10% contributory fault on the part of Mr Small. The EAT upheld the ET's decision that the dismissal was unfair, but allowed the Trust's appeal against the low assessment of contributory fault and remitted that issue to the same ET for re–determination. That hearing has now taken place. The decision that Mr Small's contribution towards his dismissal was no more than 50% has no bearing on this appeal.
I granted the Trust permission to appeal on 15 May 2008. The parties agree that the legal principles on conduct dismissals are those set out by the EAT 30 years ago in its judgment in British Home Stores Ltd v. Burchell [1978] IRLR 379 and affirmed by this court in Post Office v. Foley [2000] ICR 128 The essential terms of inquiry for the ET were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that Mr Small was guilty of misconduct. If satisfied of the Trust's fair conduct of the dismissal in those respects, the ET then had to decide whether the dismissal of Mr Small was a reasonable response to the misconduct.
The questions of law on this appeal relate to the ET's application of the legal principles when, as is often the case, there are related issues, in this case contributory fault and breach of contract. In quite a few cases the related issues will include constructive dismissal and, increasingly, discrimination in, or associated with, the dismissal. The additional issues require findings of fact. The additional facts are not the same facts as relate to the issue of the unfairness of the dismissal.
The Trust's principal ground of appeal is that, on material matters, 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 took the decision to dismiss. If that is the case, then the ET seriously strayed from its path of reviewing the fairness of the Trust's handling of Mr Small's dismissal. According to the Trust there are errors of law in the ET's reasons, upon which the EAT should have acted by allowing the appeal in its entirety and remitting the case to be completely re–heard by a different ET.
Background facts
Mr Small started his employment with the Trust on 17 August 1992 as an ambulance man. He became an ambulance technician before qualifying in 1997 as a paramedic, having successfully completed a period of training. He became a training supervisor. Before this incident there had been no complaints about his work performance or conduct. Indeed, he had received official recognition of his good service.
The incident leading to his dismissal happened on 12 July 2005. He was called to attend an elderly female patient at home. She had severe abdominal pains. Mr Crafer was the driver. Mr Small was the attendant. He had primary responsibility for care of the patient. They took her to hospital, where she died of heart disease a short time later. It has never been suggested that Mr Small's conduct was connected with the patient's death.
The patient's daughter complained to the Trust by telephone on 25 July 2005. The complaints were about the ambulance crew's treatment of her ill mother. The allegations were that she had to walk down stairs from her bedroom assisted by her son-in law, rather than being carried; that more should have been done for her, as she was diabetic and suffered from high blood pressure; and that Mr Small made an inappropriate remark about her incontinence and criticised the daughter for not giving her mother paracetamol to relieve pain.
The Trust's Professional Standards Unit appointed a Mr Pink to investigate the complaints. He interviewed the daughter and her husband on 22 August 2005. The daughter had commitments that prevented an earlier interview. The interview with Mr Small, who had been notified of the complaint on 9 August, took place on 19 September 2005. Mr Crafer was also interviewed. The Trust suspended them on 3 October. Mr Pink prepared a statement for Mr Small on the basis of the interview and sent it to him on 25 October. At the end of November Mr Small replied refusing to sign the statement, as he said it contained inaccuracies. In December 2005 Mr Pink made a report recommending disciplinary charges against Mr Small and Mr Crafer.
The disciplinary hearing took place before a panel chaired by Mr Peter Suter, the Trust's Director of Information and Technology, on 23 March 2006. There were two advisers on the panel, an HR Manager and a Sector Training Officer. The hearing had been postponed from 23 January at Mr Small's request. The case was presented by Mr Pink. Mr Small was represented by a solicitor. The panel heard evidence from the patient's daughter and her husband, as well as from Mr Small and Mr Crafer.
The 3 allegations, which were denied by Mr Small, were -
* failure to assess, treat and recognise a significantly ill patient.
* failure to provide the level of care commensurate with the training received and the standard required by the Trust.
* undertaking actions that brought the Trust into disrepute.
The disciplinary panel found Mr Small guilty of all three charges. The dismissal letter dated 27 March 2006 concluded with the following “Findings”—
“3.2 You were presented with a patient who was pale, in pain, critically hypoxic and had a respiratory rate at the upper limit. You failed to obtain a thorough history and hence establish the fact that the patient was a diabetic and suffered with high blood pressure. You failed to realise the severity of her condition and carry out a thorough assessment commensurate with your training as a paramedic. This led to you failing to provide the appropriate level of pain relief, care and treatment. In summary, you did not discharge your duties as a paramedic and afford the patient with the level of care that she was justly entitled to.
3.3 Having considered all of the above. I found that all three allegations were, on the balance of probabilities proven.
I therefore have no choice but to dismiss you without notice from the London Ambulance Service…”
Mr Small exercised his right of appeal. The internal appeal was heard on 21 June and 7 July 2007. The panel consisted of 2 non-executive members of the Trust's Board. On 11 July a letter was sent confirming his dismissal. He presented an application to the ET on 19 September 2006.
ET decision
Mr Small gave evidence to the ET and the members of the disciplinary and appeal panels made witness statements and gave evidence in person. No evidence was given by the patient's daughter or by Mr Crafer.
The ET's finding of procedural unfairness is a convenient starting point. It concluded that the procedure followed by the Trust was not fair—
“6.6….the Respondent [the Trust] carried out an investigation. The time scale left a lot to be desired. With the Claimant only being interviewed ten weeks after the event he was at a serious disadvantage. The Respondent also totally ignored the evidence of the other professional at the scene, Mr Crafer, whose evidence largely supported the Claimants. We are conscious also that the panel relied in part on a report from Dr Moore that was based on a false premise, that it was obvious that the patient was pre–terminal. The Tribunal have to apply the range of reasonable responses test to the procedure. Having regard to the factors mentioned above and applying the range of reasonable responses test we are satisfied that the procedure was not a fair one in all the circumstances of the case.”
The ET held that the unfairness of the disciplinary procedure was not corrected by the internal appeal and that, had the Trust followed a fair procedure, there was no percentage chance that he would have been dismissed, given his career and good standing with the Trust.
On substantive unfairness the ET made findings of fact about Mr Small's conduct. It concluded that the Trust had reasonable grounds for believing that Mr Small was culpable for—
* failing to give the patient pain relief
* failing to complete a Patient Record Form (a medical document PRF usually...
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