Neutral Citation Number: [2009] EWCA Civ 220
Case No: A2/2008/0333
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HHJ McMULLEN QC 
UKEAT/0395/07/MAA 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/03/2009
Before :

LORD JUSTICE MUMMERY
LORD JUSTICE LAWRENCE COLLINS 
and
LORD JUSTICE HUGHES 
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Between :

	LONDON AMBULANCE SERVICE NHS TRUST	Appellant	
	- and -		
	SIMON SMALL	Respondent	
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(Transcript of the Handed Down Judgment of
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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: 6th February 2009
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Judgment
Lord Justice Mummery: 
The appeal
1.	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).  
2.	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. 
3.	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 1283. 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.   
4.	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.    
5.	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
6.	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.
7.	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. 
8.	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.
9.	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.
10.	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. 
11.	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. 
12.	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… ”     
13.	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
14.	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.   
15.	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.”      
16.	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. 
17.	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 filled in contemporaneously or shortly after)  to a reasonable standard
•	making an ill-considered remark about the patient’s incontinence.
18.	However, the ET concluded that the Trust did not have reasonable grounds for believing that Mr Small was guilty of misconduct in relation to-
•	taking a history/examining the patient
•	failing to give the right amount of oxygen
•	failing to take a blood pressure reading
•	failing to carry the patient downstairs
•	asking the patient to roll over on the hospital bed
•	failing to recognise that the patient was seriously ill
19.	The ET’s findings of facts covered three areas that were in dispute at the internal disciplinary proceedings. First, whether the patient’s daughter told Mr Small that the patient was diabetic and hypertensive. The ET found that, on the balance of probabilities, she had not told him that. Secondly, whether Mr Small had done a risk assessment and whether it was reasonable to expect the patient to walk if at all possible. As to that the ET said that there was no evidence that he had not done a risk assessment as required and found that, on the balance of probability, he had done an appropriate risk assessment. The ET added that it was not qualified to say whether the patient could walk, but she said that she could. Thirdly, whether the new forms used by Mr Small were similar to ones previously used.  The ET held that the Trust must have regarded the new forms as very different or they would not have issued an 11 page instruction manual.  
20.	The ET concluded that the dismissal was for a potentially fair reason (conduct) and continued-
“6.3 We next asked ourselves whether the Respondent held a genuine belief in the misconduct of the Claimant? To do so the Respondent must have carried out a reasonable investigation and have reasonable grounds for their belief. It seemed to the Tribunal, applying the range of reasonable responses test that the Respondent faced a number of problems on this aspect…”     
21.	The ET referred to the time scale of the investigation and to the fact that the daughter in her interview had made “many new allegations that had not been present in her original letter of complaint” which were contradicted by the evidence of Mr Small and Mr Crafer. The ET continued in the same paragraph
“….We are conscious we must not substitute our own view for that of the Respondent. Applying the range of reasonable responses test it seemed to us from the evidence before the Respondent’s panel that they could not have held a genuine view on reasonable grounds in the culpability of the Claimant at least in terms of taking a history, examining the patient and applying treatment where necessary with regard to oxygen.  What allegations does that leave unanswered? That he did not apply pain relief, he did not apply oxygen at full rate, he had not taken a blood pressure reading, that the patient walked down the stairs inappropriately, she was asked to roll over on to the bed in the hospital, the PRF was not fully completed, he made an ill-considered remark and he failed to recognise a significantly ill patient…”         
22.	The ET dealt with each point in turn and reached the conclusion that the Trust had not shown that they held a genuine belief on reasonable grounds that Mr Small was guilty of misconduct. The ET continued
“ 6.4 …..The Tribunal were conscious that they must not substitute their own view nor must they retry the factual issues before the Respondent and have taken pains not to do so. However, looking at the information the Respondent had to hand and applying the reasonable grounds for belief test, the Tribunal are satisfied that the Respondents were not reasonable in their belief in respect of those matters for the reasons given above. However, from the evidence we are satisfied that the Respondents were reasonable in their belief that the Claimant wrongly failed to give the patient a pain killer, failed to complete a PRF to a reasonable standard and made an ill considered remark.”    
23.	The ET asked whether the dismissal fell within the range of reasonable responses to the allegations proved, applying the objective standards of the reasonable employer. It concluded that, given Mr Small’s long service without previous blemish on his record, the decision to dismiss was not a reasonable response in all the circumstances of the case.    
24.	Finally, on contributory fault, the ET found in paragraph 6.8 that Mr Small contributed towards his dismissal by failing to complete the PRF more fully, by failing to give pain relief and by making an inappropriate remark. It placed his contribution at only 10%, as he had not seen the PRF before that day,  his failure to give pain relief was based on an honest, but mistaken, assessment as to whether it was correct to administer pain relief and it was accepted that his inappropriate remark was made with good intentions.     
EAT decision
25.	The Trust appealed to the EAT against the finding of procedural and substantive unfairness and the low level of contributory fault.
26.	On procedure the EAT said this-
“39. …We uphold the submissions on behalf of the Claimant. The Tribunal has considered the failings in the procedure adopted by this Respondent. We see no error in its depiction of this case as procedurally unfair for the reasons which it gave…”   
27.	The EAT dismissed the Trust’s appeal on liability. It agreed with the Trust that it had reasonable grounds for its belief that Mr Small culpably gave the wrong amount of oxygen, but that did not affect the overall conclusion of the ET that he was unfairly dismissed. Apart from the oxygen issue, the ET had adopted the correct approach and had carefully separated the material which it had and which was available to the Trust.  It had tested the evidence against the standards of the reasonable employer. The EAT acquitted the ET of the charge that it made its own judgment on Mr Small’s conduct on the evidence before it.
28.	 On contributory fault the EAT found that the ET erred in not taking account of many admissions made by Mr Small in his evidence to the ET. It remitted the matter to the same ET to determine what % deduction should be made.  
Trust’s submissions
29.	In his skilful and moderate submissions leading counsel for the Trust, Mr Frederic Reynold QC (who did not appear below), made three points. First, the ET’s reasons for holding that the dismissal was procedurally unfair were seriously flawed.  Secondly, the finding of substantive unfairness was perverse in the light of no less than 13 errors of fact and mistaken assumptions in the ET’s reasons. Thirdly, the ET erred in law by misapplying settled legal principles and by substituting itself for the Trust’s decision maker.        
30.	The Trust’s main point is that the ET made findings of fact about conduct issues that were in dispute in the disciplinary proceedings. It then wrongly used its factual findings, which were based on the evidence that it had heard, in order to substitute its own decision on Mr Small’s conduct dismissal for that of the Trust. Mr Reynold cited the decision of this court in Morgan v. Electrolux Ltd [1991] ICR 369 for the proposition that it was an error of law for the employment tribunal to substitute its own evaluation of a witness or of the evidence for that of the employer. The ET must consider the reasonableness of the employer’s conduct. In judging that the ET must not substitute its view as to what was the right course to adopt for that of the employer. 
31.	On the issue of liability, as distinct from the issue of contributory fault, the ET was not, as the EAT thought, bound to make the findings of fact that it used in deciding whether the dismissal was unfair. In making its findings the ET also made numerous factual errors which undermined its reasoning, and failed to take account of Mr Small’s admissions in his evidence, which were relevant to liability, as well as contribution.    
Discussion and conclusion
32.	This court has only a limited power to disturb the decision of the ET. The statutory right of appeal is limited to questions of law arising from the ET’s decision or from the proceedings before it. There was no criticism of the ET’s statement of the legal principles. The decision reached after a 4 day hearing, at which both sides were legally represented, is detailed in its treatment of the evidence and in the findings of fact it made. 
33.	Mr Reynold demonstrated by reference to uncontroversial evidence that there were several factual errors and mistaken assumptions in the ET’s reasons.  They do not in themselves raise questions of law. The number of mistakes obviously diminishes confidence in the decision and increases reluctance to affirm it, but, in my judgment, the mistakes were not so serious that the overall result could, for that reason alone, be described as perverse. 
34.	That leaves two grounds of appeal: the challenge to the finding of unfair procedure and the complaint that the ET departed from its proper role of objectively reviewing the Trust’s dismissal of Mr Small and wrongly substituted itself for the Trust as decision maker.   
A.Procedural unfairness      
35.	The Trust investigated the complaint by the patient’s daughter. Following the interviews and a report by the investigating officer disciplinary charges were laid. A disciplinary hearing took place before a panel. Mr Small was legally represented at that hearing and at the internal appeal hearing. The detailed dismissal letter explained fully the course of the proceedings, the findings made and the reason for dismissal. One might well ask what was procedurally unfair about any of part of that  process?    
36.	The ET gave three reasons for finding procedural unfairness. The EAT regarded them as sufficient to support its conclusion and as involving no error of law. With respect I differ from the EAT on this point. Mr Reynold demonstrated that the conclusion cannot be justified in law, as none of the specific reasons given support the conclusion. In my judgment no reasonable ET could have concluded that there was procedural unfairness. 
37.	It is, of course, good practice to investigate suspected misconduct promptly.  It is in the interests of the employer, the complainant and the person complained about to do so. But it can take time to make reasonable inquiries. The complaint was made towards the end of July. It was obviously more sensible to interview the patient’s daughter, which was done in August, before interviewing Mr Small and Mr Crafer, which was done in September. I do not regard the time scale as unreasonable or understand what “serious disadvantage” Mr Small suffered by being interviewed when he was.     
38.	As for the other reasons for the ET’s finding of procedural unfairness, I am satisfied that the evidence of Mr Crafer was not “totally ignored” by the disciplinary panel nor did it “largely support” Mr Small’s evidence. It appears from Mr Suter’s statement that the disciplinary panel did not ignore evidence by Mr Crafer that supported Mr Small’s evidence. It also appears from Mr Crafer’s evidence that he was in several respects critical of Mr Small’s actions, such as in letting the patient walk down the stairs and in the way in which he completed the PRF. 
39.	Finally, it is clear that the ET misunderstood the position about the extent of the disciplinary panel’s reliance on the report made by Dr Moore, the Trust’s medical director, on 29 October 2005 to Mr Pink. The disciplinary panel did not rely on the entirety of the  report.  The point on the report was taken by the ET of its own motion, but it misunderstood it.  The report did not state that “it was obvious that the patient was pre-terminal”, as inaccurately quoted in the ET’s reasons. Failure by Mr Small to recognise the patient’s pre-terminal condition formed no part of the Trust’s case against Mr Small at the disciplinary hearing. There was evidence from Mr Suter before the ET that the fact that the patient later died was not a consideration in the case before the disciplinary panel.   
B. Substitution and misapplication
40.	The main criticism of the ET’s decision is that it fell into the very trap that, as it warned itself several times, it should avoid: “We are conscious that we must not substitute our own view for that of the Respondent.” (paragraph 6.3)  Mr Reynold submitted that the ET failed to observe this warning. It did not apply the legal principles correctly stated by it. I agree.
41.	On the liability issue the ET ought to have confined its consideration to facts relating to the Trust’s handling of Mr Small’s dismissal: the genuineness of the Trust’s belief and the reasonableness of the grounds of its belief about the conduct of Mr Small at the time of the dismissal. Instead, the ET introduced 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, who did not give evidence to the ET, had not told Mr Small that her mother was hypertensive and diabetic. Further, on the point whether Mr Small had done a risk assessment before asking the patient to walk, the ET held that there was no evidence that he had failed to carry out a risk assessment, but Mr Suter gave evidence to the ET that the crucial issue before the disciplinary panel was that Mr Small had not carried out a proper patient  assessment,  before the decision was made.     
42.	The ET used its findings of fact to support its conclusion that, at the time of dismissal, 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. In my judgment, this amounted to the ET substituting itself and its findings for the Trust’s decision-maker in relation to Mr Small’s dismissal. 
43.	It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question- whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.       
C. Separate and sequential fact finding
44.	I agree with the EAT that the ET was bound to make findings of fact about Mr Small’s conduct for the purpose of deciding the extent to which Mr Small’s conduct contributed to his dismissal. That was a different issue from whether the Trust unfairly dismissed Mr Small for misconduct. Contributory fault only arose for decision, if it was established that the dismissal was unfair. The contributory fault decision was one for the ET to make on the evidence that it had heard. It was never a decision for the Trust to make. That makes it different from the decision to dismiss, which was for the Trust to make. 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.
45.	I am unable to agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substituting its own judgment about dismissal. Although the ET rightly warned itself against substitution and thought that it was not falling into that error, my reading of the reasons is that its findings of fact about Mr Small’s conduct seeped into its reasoning about the unfairness of the dismissal.
46.	Mr Marsh spoke of his experience that ETs often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stages of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for the ET to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and, increasingly, discrimination and victimisation claims. Of course, some facts will be relevant to more than one issue, but the legal elements of the different issues, the role of the ET and the relevant facts are not necessarily all the same. 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.                      
Result
47.	I would allow the appeal. The ET erred in law in its failure to apply the law correctly. On the issue of liability, the ET should have focused its fact finding on the Trust’s conduct of Mr Small’s dismissal. Instead, it concentrated on the conduct of Mr Small and it then used findings of fact in order to substitute its views for the grounds on which the Trust actually formed its belief and acted when it took the decision to dismiss. The ET should only have used its findings about the conduct of Mr Small on the separate issue of whether there was contributory fault on his part. 
48.	I have considered whether it is open to this court to prevent these proceedings from dragging on for yet another year by itself deciding, on the basis of the facts found, whether the Trust unfairly dismissed Mr Small. The events occurred between 3 and 4 years ago. I would favour closure of this case now, if that were possible. 
49.	In my judgment, however, it is impossible for this court to decide liability in this case. It cannot be said that, if the matter were remitted, a reasonable ET would be bound to decide this case one way or the other. It is for the ET to re-hear the evidence and to consider whether, applying the law in this judgment, the Trust unfairly dismissed Mr Small. Accordingly, this matter should be remitted for re-hearing by a differently constituted tribunal.  
Lord Justice Lawrence Collins:
50.	I agree.
Lord Justice Hughes:
51.	I also agree.