APPEARANCES
| For the Appellant |
Ms A PALMER
(of Counsel)
Instructed by:
Messrs Beachcroft LLP Solicitors
10-22 Victoria Street
Bristol BS99 7UD |
| For the Respondent |
MISS R DAVIES
(Solicitor)
Messrs Ashton Rowe Solicitors
128 Northfields Avenue
Ealing
London W13 9RT |
SUMMARY
Unfair dismissal: Reasonableness of dismissal / Contributory fault
The Claimant, an ambulance paramedic, was summarily dismissed for gross misconduct as a result of an incident when he attended an emergency, and failed to carry out certain procedures. Unfair dismissal was upheld on substantive and procedural grounds but the Employment Tribunal reduced his compensation by 10% for blameworthy conduct. It dismissed the Respondent's defence to wrongful dismissal, finding he was not guilty of gross misconduct. It recited the mainly agreed facts and resolved three disputed issues before concluding that the Respondent did not have reasonable grounds for its belief in the Claimant's guilt after investigation and the dismissal was outside the band of responses of a reasonable employer. This was not an impermissible substitution of its view for that of the Respondent, but application of PO v Foley to the material available to the Respondent, and a necessary function especially when contribution and breach of contract require positive findings.
Its finding on contribution did not take account of eight admissions. Its 10% assessment was set aside and remitted to the same Employment Tribunal to determine what percentage should be deducted, the Claimant seemingly more responsible than the Respondent for the dismissal.
HIS HONOUR JUDGE McMULLEN QC
- This case is about the correct approach to unfair dismissal and misconduct and the assessment of contribution for the purposes of compensation. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent.
Introduction
- It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal chaired by Employment Judge Mrs C M Green sitting over six days at Watford, including two in deliberations, following written submissions. The judgment was registered with reasons on 7 June 2007. The Claimant and the Respondent were represented respectively by Miss Davies, solicitor, and Ms Palmer of Counsel. The Employment Tribunal summarised the issues in the following way:
"1.1 The Claimant claimed unfair dismissal and breach of contract in respect of a contractual entitlement to money in lieu of notice.
1.2 The Respondent alleged they had dismissed the Claimant on the grounds of misconduct and that they held a genuine belief in that misconduct after carrying out a reasonable investigation and disciplinary procedure and that dismissal was within the band of reasonable responses. In the circumstances, since gross misconduct was alleged and found proved, the Respondent asserted that the Claimant was not entitled to money in lieu of notice as provided for in his contract."
In addition the Respondent contended that the Claimant was guilty of blameworthy conduct and any compensation should be reduced to nil.
- The Employment Tribunal decided in favour of the Claimant but reduced his compensation by 10 per cent. It upheld his breach of contract claim for four weeks' notice pay; assessment of those sums awaits this judgment. The Respondent appeals. Directions sending this appeal to a full hearing were given at a preliminary hearing where Ms Drake and I sat with Mr Motture (see our judgment of 9 August 2007). At that hearing we had insufficient time, for neither Counsel had been able to respond to her opponent's submission. We did, however, decide one aspect of the appeal which is correctly stated in the order but a slightly different approach has been made today as a result of a correction we made so that the issue is not the self-direction of the Employment Tribunal but in its application of the law.
The legislation
- The relevant provisions of the legislation are not in dispute. They are the Employment Rights Act 1996 s98(1) and (2), which includes conduct as a potentially fair reason for dismissal. The Respondent had discharged its duty under s98(1) and (2) to show the reason for dismissal.
- Section 98(4) deals with fairness and says this:
"(4) In any other case where the employer has fulfilled the requirements of subsection (1), 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 in the circumstances (including the size and administrative resources of the employer's undertaking) 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."
- At the preliminary hearing we considered one aspect of the Notice of Appeal which relates to a contention that the Tribunal had the legal test wrong when applying the judgment of the EAT in BHS v Burchell [1980] ICR 303. The Tribunal asked itself the following question:
"6.1 We first asked ourselves whether the Respondent had shown a potentially fair reason for dismissal?
6.2 The Respondent relied on conduct as the principal reason, that conduct being a failure to assess and treat a seriously ill patient in accordance with the requirements of his job and training. lt seemed to the Tribunal that this must amount to a potential conduct matter.
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."
Although the genuineness of the belief is reflected in this judgment we held that Ms Palmer's submission was incorrect.
- The Employment Tribunal considered the statute and the relevant authorities and directed itself correctly in the following terms:
"4.1 Having established the potentially fair reason for dismissal, it is for the Tribunal to determine, the burden of proof being neutral, whether the Respondent had reasonable grounds for belief having carried out a reasonable investigation. In answering those questions the Tribunal must apply the range of reasonable responses test. It must not substitute its own view for the reasonable grounds for belief or whether a reasonable investigation was carried out. Nor must the Tribunal seek to re-try the factual issues before the employer at the disciplinary hearing stage or the appeal stage. Finally, the question is whether the dismissal fell within the range of reasonable responses. The Respondent in this case relied on conduct which is a potentially fair reason."
We see no error of law in the self-direction on the authorities summarised. The question is whether the Employment Tribunal misapplied them.
- Compensation is determined by reference to Section 123(1) and (6)
" (1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss in attributable to action taken by the employer.
(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
There is a similar rule which in practice is treated in the same way for the purposes of a basic award (see s122(2)).
The facts
- The Respondent is an NHS Trust which provides the ambulance service in Greater London. The Claimant is described by the Tribunal in the following way:
"3.1 … the Claimant was employed by the Respondent from 17 August 1992. He started his career as an ambulance person and then subsequently became an ambulance technician. After completing paramedic training he became a paramedic in 1997. He subsequently went on to become a training supervisor. Up until the incident in question there had been no complaints about his work performance or conduct.
3.2 The Claimant was considered to have good communication skills and represented the Respondent in a number of radio and television interviews. He was also a member of the specialised Decontamination Team and was awarded the Queen's Golden Jubilee Medal and the Voluntary Medical Services Medal."
- The Tribunal found that the Respondent had a large number of policies for its paramedical staff which are reduced to guidelines included within a manual, which is updated from time to time. Some of these are directly relevant to the administration of oxygen and of pain relief.
- Coming back from his holiday on 11 July 2005, the Claimant was engaged to work a shift beginning at 23.00 hours and ending at 06.00 hours on 12 July. The allocation included his work with a technician Mr P Crafer. The Tribunal went on to find this:
"3.6 At 5.16 on 12 July a call from an on-call GP. was passed to the Claimant's crew to attend a 79-year-old female with abdominal pains. It was classified as a green light, non-urgent call. When the crew arrived at the site Mrs Legg, the patient's daughter , told the ambulance crew that her mother had been diagnosed with a urinary tract infection by her GP. For which she had been prescribed antibiotics, which had had no effect. Mrs Legg had been the person who had called the on-call GP. who had alerted the ambulance crew. From the record of the call it was apparent that the GP. made no mention of diabetes or hypertension in his call to the ambulance service.
3.7 Upon arrival at the premises the Claimant examined the patient in her bedroom and took some history from the patient and her relatives. We know that because he had recorded on the PRF the patient's date of birth, her responsiveness, her respiration rate of 20, her pulse rate of 78, her coma scale reading of 15 as being conscious and alert, the area in her abdomen where she was suffering discomfort and a brief history. Also Mr Crafer witnessed him conducting some of these assessments. He did not put in the time of the tests but he noted the time he had arrived at the scene and left the scene, a period of 9 minutes. The Patient was suffering from abdominal pain and was not exhibiting chest or other pain and he decided her condition was consistent with the GP's diagnosis. It was decided to convey the patient to hospital and the Claimant stated he carried out a risk assessment in terms of removing the patient from the house in a chair. In carrying out his risk assessment he stated that there was a large piece of furniture on the landing and he assessed that it would be better that the Claimant walk downstairs if she was able and be carried by chair from outside the house. He sent Mr Crafer to fetch the chair. The patient was asked if she was able to walk downstairs and she stated that she was. She was also able to dress herself, which she did. With the assistance of her relatives she walked down to the ground floor, out of the front door and was carried by chair from outside the house to the ambulance. The patient had an accident in the carry chair on which the Claimant commented. The ambulance left at 5.34 with the patient's daughter in the back with the patient and the Claimant. In the ambulance the Claimant attempted to take a blood pressure reading, which he was unable to do because of the difficulty with the size of the cuff relative to the size of the patient's arm. He manually palpated a radial pulse to get a blood pressure reading, which provided a satisfactory reading. Further, he checked her oxygen level, which gave a reading of 81, which required the administration of oxygen, which the Claimant applied at medium flow.
3.8 The ambulance arrived at the hospital at 5.41. The patient was asked if she could rollover on to the hospital bed from the trolley and she did so. The patient was seen by a nurse, who assessed her and recorded the diagnosis of abdominal pain due to a urinary tract infection on the assessment form. Her vital signs were not recorded by the hospital. The patient was assessed as needing immediate attention but only needing an ordinary cubicle rather than being placed in resuscitation. At this time the patient's other son-in-law, a Mr Moran, who was also an LAS paramedic, attended upon his mother-in-law. Subsequently, the patient suffered a cardiac arrest and was resuscitated. She was then triaged as "red". Subsequently she suffered another arrest and died. Her death was due to ischemic heart disease and had nothing whatsoever to do with the patient's difficulties requiring the attendance of the Claimant, nor indeed with the treatment given to her by the Claimant."
- Sadly the patient died shortly after being taken to hospital by the Claimant and Mr Crafer. It had nothing to do with his attendance or his treatment of her. However, a complaint was made, and in due course a large number of allegations was made against the Claimant about his attendance that night in the ten minutes or so when he was engaged. The Tribunal made findings on the agreed facts. The Claimant had been the subject of disciplinary proceedings. Mr Suter, Director of Information Management and Technology, decided that he was guilty of misconduct and should be dismissed. There was an appeal, which failed.
- The Tribunal set out three issues which were disputed. They are the information given by Mrs Legg about whether her mother was diabetic; whether the Claimant had done a risk assessment entitling him to walk the patient rather than carry her in a chair; and whether the Claimant had filled in a new form known as a PRF, which had come into operation while he was on holiday. The Tribunal reached the conclusion that the dismissal was by reason of conduct and examined by reference to the judgment in British Home Stores Ltd v Burchell [1978] IRLR 379 whether the Respondent held a genuine belief in the misconduct of the Claimant. It said (our emphasis):
"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. The event occurred on 12 July 2005. The Claimant was not interviewed until the 19 September some ten weeks after the event. Mr Crafer, likewise, was not interviewed until after nine and a half weeks. Mrs Legg was interviewed some six weeks after the event. However, at her interview she made many new allegations that had not been present in her original letter of complaint. The allegations that the Claimant had not taken any observations or examined the patient, had not taken any history, had not even entered the room but had just propped himself up on the door post and said he would take her to hospital and had not brought any equipment with him into the house were all new. It was surprising that they were not in the original complaint because Mrs Legg's brother in law was himself a LAS paramedic and she had only made the complaint after discussing the matter with him. Moreover, they were allegations that were contradicted by the evidence of the Claimant and Mr Crafer. Mr Crafer stated he had seen the Claimant in the room taking observations and feeling the patient's abdomen. There was no possible reason for Mr Crafer to lie. Indeed, to the contrary, Mr Crafer had indicated he did not like the Claimant. The PRF the Claimant had completed at the time also confirmed that those tests had been done and that what Mr and Mrs Legg stated was not correct. 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 is 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."
- The Tribunal thus had to deal with the additional matters which were the subject of the criticisms by the Respondent of the Claimant. In passages at 6.3.1 to 6.3.8 it made findings, which may be summarised roughly as five in favour of the Claimant and three in favour of the Respondent, and as a result of that it came to this conclusion:
"6.4 We are not satisfied that in respect of allegations 6.3.2, .3, .4, 5, 7 and 8 the Respondent has shown they held a genuine belief on reasonable grounds that the Claimant was guilty of misconduct. 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 [have] done 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 Respondent 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 Respondent were reasonable in their belief that the Claimant wrongly failed to give the patient a pain killer, failed to completion a PRF to a reasonable standard and made an ill considered remark."
- The Tribunal then went on to consider whether there was a reasonable response to the allegations which were proved. It did so, as it said, "applying the objective standards of the reasonable employer". The Tribunal came to this conclusion:
"6.5 …The conduct that we have found the Respondent were reasonable in their belief occurred were three matters, the failure to give a pain killer, the failure to complete a PRF to a reasonable standard and making an inappropriate remark. It seemed to the Tribunal that when considering whether to dismiss an employee of long service without a previous blemish on his record the decision would require some greater consideration than his failure in one case to administer a painkiller when he had classified the pain as mild to moderate, his failure to complete fully a brand new form he had not seen before and making an inappropriate remark. Having regard to the above we do not find that the decision to dismiss was a reasonable response in all the circumstances of the case. We say that because the Claimant's downfall on the PRF was in part the Respondent's fault in that they had not issued the manual to employees who had to deal with the new PRF. There may have been training issues surrounding when the giving of painkillers was appropriate. Further, with regard to the inappropriate remark, there was no suggestion that this was in any way said maliciously. When considering whether those were sufficient reasons to dismiss this employee we do not consider that the decision to dismiss was a reasonable response in all the circumstances of this case."
- As an auxiliary finding, the Tribunal then went on to consider procedural matters. No criticism is made before us of that approach, which on analysis appears to be a distinction between looking at the matter as one of substance, and then as one of procedure. Criticisms were made of the Respondent's procedure including the appeal. The dismissal was not a fair one in all the circumstances of the case and it gave examples. It then went on to consider whether or not there was to be any acknowledgement that had a fair procedure been adopted the Claimant would have been dismissed. That would be in respect of the "pleaded" case under s98(A)(2), the reversal of Polkey, (Polkey v AE Dayton Services Ltd [1988] ICR 142 HL). A dismissal which is unfair on procedural grounds only is not to be determined as unfair if the respondent on a balance of probability was likely to have dismissed the claimant in any event: there is a reversal of the unfair to a fair dismissal. The Tribunal does not expressly descend into s98A(2) but makes this finding:
"6.8 It seemed to us, therefore, that the Respondent had shown a potentially fair reason for dismissal, conduct. The decision to dismiss was not within the range of reasonable responses in all the circumstances. Even if we are wrong on that, the disciplinary procedure was not fair and the unfairness was not corrected by the appeal. It seemed to the Tribunal that had the Respondent held a fair procedure, there was no percentage chance the Claimant would have been dismissed giving his career and good standing with the Respondent."
- It then went on to consider the second contention made by the Respondent for reducing its exposure to compensation and held that the Claimant contributed by 10 per cent. This was by reason of his failure to complete the PRF more fully, failing to give pain relief, and making an inappropriate remark, and assessed it at 10 per cent, for which there is no appeal by the Claimant.
- The Tribunal upheld the Claimant's contention that there was a breach of contract by his summary dismissal, and awarded four weeks' notice, expressly rejecting the Respondent's case and holding that no gross misconduct had been committed.
The Respondent's case
- On the basis of those findings the Respondent appeals. The Respondent contended two basic errors in the Tribunal's reasons could be found.
- First, the Tribunal had impermissibly substituted its own judgment for that of the Respondent in deciding whether it was fair to dismiss. As prime examples of substitution, three passages were condemned by Ms Palmer. These are the findings on the balance of probabilities that Mrs Legg did not tell the Claimant that her mother was a diabetic; that the Claimant had done an appropriate risk assessment; and that the Claimant had administered oxygen, in accordance with the material with which he had been provided.
- Secondly, the finding in favour of the Claimant was perverse in its legal sense. The Tribunal made its findings in respect of the unfair dismissal allegation which were unsupported by the evidence or the evidence did not suggest the result found by the Tribunal.
- The Tribunal failed to consider a sequence of 11 admissions made by the Claimant which would have affected both liability and contribution. It had failed to respond to written submissions made at the end of the oral hearing; and the Tribunal had failed to consider s98(2) and or Polkey. The Tribunal had erred in failing to consider the admissions when assessing contribution and wrongful dismissal.
The Claimant's case
- On behalf of the Claimant it is contended that the Tribunal is not to be impugned for substitution of its judgment, for what it did was to make findings of fact and then to assess the band of reasonable responses of an employer and to match the findings which it made against that standard.
- It was accepted on behalf of the Claimant that eight of the 11 admissions cited by the Respondent would not be disputed. Procedural unfairness, as found by the Employment Tribunal, was amply justified by the Claimant's criticism made during the hearing of the way in which the Respondent approached the material both at the disciplinary hearing and at the appeal, including, for example, the delay in contacting him for 10 weeks, restrictions on cross-examination and the discount of the medical evidence which he had brought to the internal appeal.
- As to contribution, it was contended that the Tribunal had all the facts in mind when it assessed contribution. The judgment of the Tribunal to reduce the award was not disputed nor was the assessment at 10 per cent.
The legal principles
- As we have said the Tribunal helpfully set out the legal principles relevant to this case (para 7 above). In addition it is to be noted that the Court of Appeal in Post Office v Foley [2000] IRLR 827 had dealt with the matter of the substitution by an Employment Tribunal of its own decision for that of the employer. Mummery LJ giving the judgment, with which both Rix and Nourse LJJ agreed, said this in relation to the established tests of unfair dismissal:
"52. It was also made clear in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 at 24-25 that the members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses 'which a reasonable employer might have adopted'.
53. In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to 'reasonably or unreasonably' and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not.
…
79. Instead of determining whether the bank had made reasonable investigations into the matter and whether it had acted within the range of responses of a reasonable employer, the tribunal in effect decided that, had it been the employer, it would not have been satisfied by the evidence that Mr Madden was involved in the misappropriation of the debit cards or their fraudulent use and would not have dismissed him. The tribunal focused on the insufficiency of the evidence to prove to its satisfaction that Mr Madden was guilty of misconduct rather than on whether the bank's investigation into his alleged misconduct was a reasonable investigation.
80. This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."
Discussion and conclusions
- On the issue of liability we prefer the arguments of the Claimant with one reservation upon which we uphold the argument of Ms Palmer. On contribution, we consider there is substantial force in Ms Palmer's argument, to which we will return.
- The principal focus of Ms Palmer's argument was that this Tribunal had impermissibly substituted its judgment for that of the Employment Tribunal. Just how close a Tribunal has to come in finding the facts before it crosses the line into impermissible substitution was amply demonstrated by the passages from Post Office v Foley, (para 25 above). It must be recalled also that the Employment Tribunal is now specifically required by the Employment Tribunal Rules, rule 30(6), to set out the findings of fact which it makes relevant to the issues which it has to decide. In this case, the Tribunal had set out that there were agreed facts and there were disputed facts. It follows if there are disputed facts, as identified by the Tribunal following submissions of Counsel, it is under an obligation to determine them if they are relevant to the decision, as they were. In this case, there were issues as to the grounds upon which the Respondent formed its belief, whether that belief was genuine, whether there was a reasonable investigation informing that belief, and whether on this material it was reasonable to dismiss. In addition, were allegations gross misconduct and contribution.
- In Polentarutti v Autocraft [1991] IRLR 457, the EAT held that "The statute requires a finding that the dismissal was to any extent caused or contributed to by any action of the complainant." That is a reference to a claim by an employer that there was contribution. As Knox J pointed out at para 31, following Morison v Amalgamated Transport & General Workers' Union [1989] IRLR 361 NICA, "the … concepts … are distinct and each requires a separate consideration and decision". Similarly, where a claim for breach of contract is made and gross misconduct is alleged, a finding must be made as to whether in fact gross misconduct occurred. In misconduct dismissals, where contribution is alleged, or where there is a parallel claim for breach of contract, the Tribunal has to make findings as to what occurred, as well as deciding, on the material which was, or should reasonably have been, available to the employer, whether the employer responded reasonably. When there is a criticism of the investigation, the Employment Tribunal must make a finding on what material would have emerged had a reasonable investigation been carried out. By definition, this would not have been in front of the employer when the decision was made and usually arises at the Employment Tribunal hearing.
- The Tribunal's exegesis of the agreed facts ends with the three disputed matters. In our judgment the Tribunal was bound to make findings of fact as to them, for why else would they have been so identified?
- The account of what happened on the night would be incomplete when there was a dispute between the Claimant and Mrs Legg about what she said she told him concerning her mother's diabetes. The Tribunal has made a finding of fact, and has made it on the basis of the material which the Respondent heard and an examination of matters pointing for or against that conclusion. It has given cogent reasons for finding that Mrs Legg did not tell the Claimant about her mother's hypertension or diabetes.
- Secondly, on the issue of whether the Claimant had done a risk assessment, this is principally to do with whether the patient could walk or needed to be carried in a chair. The Tribunal made a finding that he had conducted such an assessment, justified again by cogent reasoning.
- Thirdly as to the new PRF, the Tribunal has made a finding about what the form contained and no direct contention has been made about the construction of the Tribunal on this form.
- The allegation of substitution surfaces again in relation to the eight matters which it had to decide once it had found in favour of the Claimant as a matter of fact on the evidence which he gave about that material. The Tribunal applied the range of reasonable responses test to decide whether the Respondent held a genuine view about the culpability of the Claimant and acquitted him in respect of three charges - not taking the history, not examining the patient and not applying oxygen.
- Oxygen was the subject of a further direct finding. On this, the Tribunal concluded that it was difficult to understand how the Respondent could find fault with the Claimant's approach or be reasonable in its belief in his misconduct in all the circumstances. We have been shown in detail the various guidelines which regulate the treatment of a patient who demonstrates hypoxia, and we accept the submission of Ms Palmer that the Claimant was directed by the relevant guidelines to administer oxygen at a high level and not a medium level when hypoxia was presented by a patient. With respect to the Employment Tribunal, its view that this matter was confusing, cannot stand on the agreed notes of cross-examination which we have now been shown, that the Claimant had not read the guidelines. So the conclusion in favour of the Claimant in relation to oxygen is one which the Tribunal was not entitled to come to and is perverse.
- The Tribunal has found in favour of the Respondent on the Claimant's use of the PRF, on the remark which he made insensitively (and which he accepted) and on the failure by the Claimant to administer pain relief. There is no challenge as to the correctness of the Tribunal's self-direction and approach to those issues. On the basis of that material, balanced against the matters which it found in favour of the Claimant, it held that the Respondent had not been reasonable in its belief as to the misconduct of the Claimant.
- We see no error in the approach of the Employment Tribunal apart from the one which we have identified. That must be seen in the context of the other findings in favour of the Claimant's case and against the Respondent's charges against him. Although the Tribunal erred in relation to the oxygen issue, it must be borne in mind he did administer oxygen but at a medium level, and the Tribunal's overall conclusion that the dismissal was unfair, is one which is unarguably right, notwithstanding that error.
- The Tribunal was careful to separate the material which it had and which was available to the Respondent, as can be seen in the passages we have emphasised (Reasons paras 6.3, 6.4). In every place where it has to apply the test from Iceland Frozen Foods v Jones [1983] ICR 17 EAT and from Post Office v Foley (above) it does so by testing the evidence against the standards of a reasonable employer. It has taken that objective standard. It is to be acquitted of the charge that it made its own judgment. It certainly did not come to the conclusion so criticised in Post Office v Foley that it personally thought the dismissal was unfair and each of the members would have decided the matter differently from these employers.
- We turn then to the auxiliary point made by the Tribunal as to the procedure. Again 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. That then led to its conclusion as to whether or not there should have been a reduction. That will, of course, apply, where a decision is unfair by reason of procedure. Since we have upheld the finding in relation to the substantive unfairness of the dismissal this point need not arise, but a serious contention was made that the Tribunal had failed to pay attention to a submission on s98A(2). That is true to a point, it has not cited it. But this finding (Reasons para 6,8 at para 15 above), if correct, disposes of a claim under s98A(2) and under Polkey as well. There was no chance of this dismissal occurring had the procedure been carried out correctly. We see no error in the Tribunal's approach to that either. If we are wrong on all we have said about the substantive decision of unfairness, the finding on unfair procedure, with a nil reduction, equally makes the finding of unfair dismissal correct.
- That leaves us with contribution. A most important element of this case, both when Ms Drake and I heard it at the preliminary hearing and today, was the contention that a very large number of admissions had been made but not recorded. The task we have had today has been made easier by the constructive approach taken on behalf of the Claimant by Miss Davies to the clear contention made by Ms Palmer in her skeleton argument. In addition to the admissions which we have cited above and which include the findings against the Claimant by the Employment Tribunal, there must be considered the 11 admissions set out in paragraph 28 of Ms Palmer's argument. As to three, there is a dispute. Nevertheless, the eight untouched allegations here, from which it is plain that the Claimant accepts responsibilities, should have been the subject of careful examination by the Employment Tribunal when it came to consider contribution. We do not consider these matters properly fall within the liability determination of fair or unfair dismissal and have dealt with these matters where we consider they properly fall, which is by way of remedy and contribution.
- In the light of these admissions together with the findings by the Tribunal, we consider that the Tribunal has erred in awarding only 10 per cent. We are very conscious that the assessment of blame as a percentage figure (reinstatement is not an issue here), is one of fact for an Employment Tribunal, particularly where its primary findings are upheld on appeal: see the authorities cited in Polentarutti at para 48. But it must observe the correct principles. If we were simply asked to consider a higher percentage below 50 per cent, we would not have intervened, for that still shows that the contribution of the Claimant to his dismissal was not dominant. It seems to us that there is force in Ms Palmer's argument that the Tribunal's figure should have been something over 50 per cent. It is not for us to determine that because she invites us to send this case back and we do not have the material for us to decide such a fact based issue. It seems to us that on this material the Tribunal ought to have considered this dismissal as more likely to have been contributed to by the Claimant than less.
- It follows that the Employment Tribunal correctly upheld the claim for breach of contract.
Result
- As to remission, we have considered the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 263 EAT. We have upheld the Tribunal's finding on unfair dismissal and there is no dispute that there should be a contribution. We cannot see that the Respondent could reasonably say that it has lost confidence in this Employment Tribunal to do justice. It has spent six days on this case and will have the facts in front of it. It has the submissions because they are all referenced by Ms Palmer in her skeleton argument. It need not have another hearing on this matter, for if she is right of course, and it has not been disputed that these are from her submissions, the Tribunal will simply be asked to consider the correct percentage contribution in the light of those accepted admissions but it will be open to call for further submissions if so minded.
- It may be possible for this case to be resolved by negotiation or by conciliation. We have borne firmly in mind the very high standards imposed by the public upon the London Ambulance Service and discharged by its technicians and paramedics to a very high level. It is not surprising that very strong feelings were expressed by both sides and the outcome was not all one way. We would very much like to thank both representatives. The appeal is allowed in part. Permission to appeal refused [reasons not transcribed].
