Employment Update April 2009: Unfair dismissal

By Employment Group


Tribunals should not ‘second-guess’ employers on misconduct dismissals

In the case of London Ambulance Service v Small the Court of Appeal has reminded tribunals of what they should do when assessing the fairness of a misconduct dismissal.

The claimant was a member of an ambulance crew. A formal complaint had been made about the way in which the claimant had treated a patient. Included amongst the allegations made by the patient’s daughter was a failure to administer any painkillers and making the patient walk downstairs to the ambulance when she was not fit to do so. The patient died a short time later, although it has never been suggested that the claimant’s conduct was connected to the death.

The claimant’s evidence and that of his colleague on the scene conflicted with that of the patient’s family. The employer also took into account an expert medical report on the patient’s condition before deciding to dismiss the claimant for misconduct. The employment tribunal (ET) decided that the dismissal was procedurally and substantively unfair. The ET concluded that the employer did not have reasonable grounds for believing the claimant was guilty of misconduct as although it could be proved that he had failed in some respects (eg failure to administer painkillers) many of the other allegations could not be proved. The EAT thought the tribunal had been wrong on some issues but not wrong enough to overturn its decision.

The Court of Appeal allowed the employer’s appeal, concluding the ET had erred in failing to apply the law correctly.  The principles laid down the case of British Home Stores v Burchell as long ago as 1978 must still be applied in such a case: Did the employer genuinely believe that the employee had been guilty of misconduct? Did it have reasonable grounds for that belief? And had it carried out a proper investigation before dismissing the employee? If so, the dismissal will be fair.

 When dealing with misconduct dismissals, tribunals should focus their fact-finding on the way in which the employer dealt with the allegation of misconduct. Fact-finding about the misconduct itself will only be relevant in considering to what extent the employee contributed to his/her own dismissal.

Both decisions of the ET and EAT were overturned and the case remitted for a re-hearing by a differently constituted tribunal.

Points to note –

  • This case is a reminder to employers that in misconduct cases, it is not a requirement to prove misconduct to effect a fair dismissal.. If the employer follows the steps set out in the Burchell test (see above) and the decision to dismiss falls within a ‘range of reasonable responses’ it will be fair even if the tribunal which later hears an unfair dismissal claim may have come to a different decision (as in this case). Accordingly, it is not for a tribunal to substitute its views of the conduct for that of the employer.

  • One of the claimant’s allegations was that the dismissal was procedurally unfair in that he was only formally interviewed about the incident with the patient 10 weeks after the event. The Court of Appeal dismissed this allegation. The delay had been due to the fact that the employer needed to interview the patient’s family first and that had taken some time to arrange.