Mr A Mitchell v South Western Ambulance Service NHS Foundation Trust: 1401424/2016
EMPLOYMENT TRIBUNALS
Case No 1401424/2016Venue BodminHearing 30 June 2017
Between
Mr A MitchellClaimantSouth Western Ambulance Service NHS Foundation TrustRespondent
Before
Employment Judge N J RoperIn person for claimantMr N Caiden (instructed by Counsel) for respondentDate 30 June 2017
JUDGMENT
ON COSTS APPLICATION The claimant is ordered to pay the respondent's costs in the sum of £18,750.00.
REASONS
[1]This judgment is to be read in conjunction with the Judgment dated 30 June 2017 which was read to the parties this morning and in which the claimant’s unfair dismissal claim against the respondent was dismissed (“the Judgment”). The respondent has now made an application for payment by the claimant of some of its costs of successfully defending this action.[2]Findings of Fact Relevant to the Costs Application[3]The full background and circumstances of this claim are set out in the Judgment. In short, the claimant brought a claim for unfair dismissal against the respondent following his dismissal for gross misconduct. The claimant had always accepted that he had committed the gross misconduct for which he was dismissed: first, crossing professional boundaries and engaging in a personal relationship with a vulnerable patient, and secondly lying about the background against which he initiated a “Running Red” call to divert his ambulance. Despite his effective admission of gross misconduct he has repeatedly made a considerable number of allegations of unfairness with regard to procedure, all of which were rejected, but not before the respondent was required to defend its position during a lengthy hearing. In addition the claimant persisted in a serious and unfounded allegation that the respondent’s managers had dishonestly attempted to distort the investigation process to his detriment.[4]By letter dated 24 January 2017 the respondent sent the claimant a detailed costs warning. It explained the weaknesses in the claimant’s case, and explained the legal test to be applied, and why the Tribunal would reject the claim. The claimant was able to obtain professional advice on that letter. The claim was subsequently dismissed by the Judgment and the reasons were effectively the same reasons which had been explained to the claimant. The claimant was offered a settlement whereby he could withdraw his claim with no resulting application for costs, but warned that if he continued then the respondent, which is a public body, would make a costs application to recover its costs. The claimant refused to withdraw. He was approached again through ACAS during the week before the hearing, but again refused to withdraw his claim with no order as to costs. As a result the respondent has been put to considerable time and expense over many days in defending the claim.[5]The Application for Costs[6]The respondent makes an application for its costs on the basis that the claimant has acted unreasonably in the way in which the proceedings have been brought and conducted, and also because the claim had no reasonable prospect of success. The claimant resists the application.[7]The Rules[8]The relevant rules are the Employment Tribunals Rules of Procedure 2013 (“the Rules”). Rule 76(1) provides: "a Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that –(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.[9]Under Rule 77 a party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[10]Under Rule 78(1) a costs order may –(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles …"[11]Under Rule 84, in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[12]The Relevant Case Law[13]I have considered the following cases: Gee v Shell Ltd [2003] [2003] IRLR 82 CA; McPherson v BNP Paribas [2004] ICR 1398 CA; Monaghan v Close Thornton [2002] EAT/0003/01; NPower Yorkshire Ltd v Daley EAT/0842/04; Kapoor v Governing Body of Barnhill Community High School UKEAT/0352/13; Nicholson Highland Wear v Nicholson [2010]IRLR 859; Barnsley BC v Yerrakalva [2012] IRLR 78 CA; Topic v Hollyland Pitta Bakery & Ors UKEAT/0523/11/MAA; Shield Automotive Ltd v Greig UKEATS/0024/10; Jilley v Birmingham and Solihull Mental Health NHS Trust [2008] UKEAT/0584/06; Single Homeless Project v Abu [2013] UKEAT/0519/12; Vaughan v LB of Newham [2013] IRLR 713; Raggett v John Lewis plc [2012] IRLR 906 EAT.[14]The Relevant Legal Principles[15]The correct starting position is that an award of costs is the exception rather than the rule. As Sedley LJ stated at para 35 of his judgment in Gee v Shell Ltd “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that in sharp distinction from ordinary litigation in the UK, losing does not ordinarily mean paying the other side’s costs …” Nonetheless, an Employment Tribunal must consider, after the claims were brought, whether they were properly pursued, see for instance NPower Yorkshire Ltd v Daley. If not, then that may amount to unreasonable conduct. In addition, the Employment Tribunal has a wide discretion where an application for costs is made under Rule 76(1)(a). As per Mummery LJ at para 41 in Barnsley BC v Yerrakalva “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it, and what effects it had.” However, the Tribunal should look at the matter in the round rather that dissecting various parts of the claim and the costs application, and compartmentalising it. There is no need for the tribunal to find a causative link between the costs incurred by the party making the application for costs and the event or events that are found to be unreasonable, see McPherson v BNP Paribas, and also Kapoor v Governing Body of Barnhill Community High School in which Singh J held that the receiving party does not have to prove that any specific unreasonable conduct by the paying party caused any particular costs to be incurred.[16]When considering an application for costs the Tribunal should have regard to the twostage process outlined in Monaghan v Close Thornton by Lindsay J at paragraph 22: "Is the cost threshold triggered, e.g. was the conduct of the party against whom costs is sought unreasonable? And if so, ought the Tribunal to exercise its discretion in favour of the receiving party, having regard to all the circumstances?”[17]With regard to the paying party's ability to pay, Rule 84 allows the tribunal to have regard to the paying party's ability to pay, but it does not have to, see Jilley v Birmingham and Solihull Mental Health NHS Trust and Single Homeless Project v Abu. One reason for not taking means into account is the failure of the paying party to provide sufficient and/or credible evidence of his or her means. The authorities also make it clear that the amount which the paying party may be made to pay after assessment does not need to be a sum which he or she could pay outright from savings or current earnings. In Vaughan v LB of Newham the paying party was out of work and had no liquid or capital assets and a costs order was made which was more than twice her gross earnings at the date of dismissal. Underhill LJ declined to overturn that order on appeal because despite her limited financial circumstances, there was evidence that she would be successful in obtaining some further employment. Insofar as it does have regard to the paying party's ability to pay, the tribunal should have regard to the whole means of that party's ability to pay, see Shield Automotive Ltd v Greig (per Lady Smith obiter). This includes considering capital within a person's means, which will often be represented by property or other investments which are not as flexible as cash, but which should not be ignored.[18]Under Rule 78(1)(a) a costs order may order the paying party to pay the receiving party a specified amount not exceeding £20,000. Under Rule 78(1)(b) a costs order may order the paying party to pay an amount to be determined by way of detailed assessment, carried out either by the County Court or by an Employment Judge applying the principles of the Civil Procedure Rules 1998.[19]The Amount of the Application and VAT[20]The respondent seeks its costs from the costs warning letter at the end of January 2017 through to the end of these proceedings. It does not seek its costs of some £7,000 or so prior to that date. It does not seek recovery of VAT because it is able to recover the VAT, (see Raggett v John Lewis plc which reflects the CPR Costs Practice Direction (44PD)).[21]The respondent has prepared a schedule of the costs claimed by the respondent from the date of the costs warning letter. The solicitors’ costs are claimed at a variety of hourly rates depending upon the seniority of the fee-earner in question. These range from £40 per hour to £175 per hour and seem to be well within the approved County Court rates and therefore reasonable. Different aspects of the work have been undertaken by different fee-earners depending on the nature of the work, which again is a reasonable approach. The claim is for a total of £20,099.00, plus counsel’s fees of £5,250, and travelling expenses of £498.87. No VAT is claimed, and the amount claimed is limited to £20,000 so as not exceed the limit set out in Rule 78(1).[22]The claimant has made a number of observations about the excessive nature of some of the time incurred. I agree that a total of about 55 hours in preparing and amending witness statements (charged in excess of £7,000) seems excessive (there were four of them). I disagree that 20 hours was excessive for preparing the agreed bundle, particularly as the content was largely driven by the claimant’s unreasonable approach to the relevant issues. I do agree with the claimant’s objection to the 28 hours charged at £4,452 for the respondent’s solicitor to attend the hearing when Counsel had been briefed and attended. An element of assistance in meeting with the respondent and ensuring that the response is under way is appropriate, but more than this seems to be unnecessary duplication. After consideration I consider that the following costs are potentially allowed: solicitors’ costs of about £13,000; Counsel’s fees of £5,250.00, and travelling expenses of £498.87. That is a total of about £18,750.00[23]The Claimant’s Means The claimant owns a share in a property which is subject to mortgage. Otherwise he has now exhausted previous earnings on retraining and trying to establish a teaching service and module relating to offshore sailing. He has savings of about £500 and no regular income, but hopes to develop his teaching business imminently, which will generate some income.
Conclusion
[25]First I conclude that the costs threshold is triggered. Having effectively admitted the gross misconduct for which he was dismissed, and with no apparent unfairness with regard to the procedure adopted, the claimant’s claim had no reasonable prospect of success. In addition, having been informed in detail in the costs warning letter why his claim was likely to fail, an explanation which was wholly justified and which came to fruition, the claimant’s conduct was unreasonable in the way in which he continued to conduct these proceedings. In addition he continued to pursue a serious and unfounded allegation of misconduct against the respondent’s managers. That was also unreasonable conduct which had to be defended by the respondent through to the conclusion of the main hearing. In short the respondent, which is a public body with limited resources, was unnecessarily and unreasonably put to considerable expense in defending this claim.[26]Secondly, having regard to all of these circumstances I consider it appropriate to exercise my discretion to make an order that the claimant pays the respondent’s costs. The reasons include:(i) the clear costs warning;(ii) the serious and unfounded allegations pursued against the respondent’s managers;(iii) the claim was dismissed for essentially the same reasons set out in the costs letter;(iv) this case was inherently very weak from the outset; and(v) the respondent is a public body with limited and stretched resources.[27]Thirdly, I consider that the amount of costs claimed as now reduced to the sum of £18,750.00 is a reasonable amount to award in these circumstances.[28]Finally I consider the claimant’s means. Although the claimant has limited financial circumstances at the moment, he does own a share in a property and is likely to generate income in the near future. Bearing all of this in mind I therefore order the claimant to pay the respondent’s costs in the sum of £18,750.00.[29]The disciplinary hearing had been rescheduled for 4 March 2016. The claimant’s trade union representative was Mr Nelson, and he complained that the claimant had had insufficient time to prepare, his suspension had been too long, and he challenged the impartiality of Mr Cooke and Mr Cleeland-Smith. The claimant’s conduct was unpleasant and aggressive. Mr Cleeland-Smith felt it necessary to remind the claimant to behave properly and suggested to Mr Nelson that he advised the claimant about his behaviour. The meeting was postponed to 14 March 2014 to enable the respondent to consider the matters which had been raised. Mr Cleeland-Smith decided that there was no valid reason why Mr Cooke should not continue to present the MSOC, and no reason why he personally should not remain as the chair of the disciplinary panel. In addition he felt that any delay had been caused partly by the claimant’s illness, and partly the difficulty in obtaining an agreed date. In addition the claimant and his chosen union representative had had ample time to consider the MSOC. Indeed, the claimant and his representative had prepared and presented a document in defence of the claimant’s actions entitled “Response to Management’s Statement of Case” and which ran to 70 pages.[30]Mr Cleeland-Smith describes that meeting as "hard going” and on occasions he found it difficult to follow the arguments of both Mr Cooke and the claimant in reply. Eventually they ran out of time with the result that the disciplinary hearing was postponed and rescheduled for two days on 14 and 15 April 2016. The MSOC and the allegations which the claimant had to face remained the same.[31]At this reconvened disciplinary hearing it became clear that the claimant and his trade union representative wished to ask questions of certain witnesses, but had failed to arrange for them to attend as they had been notified they were required to do. Nonetheless Mr Cleeland-Smith agreed to make a note of the questions which they wished to put so that he could speak to the witnesses whom the claimant had indicated could help or support him. None of them did so, and none kept their appointments for meetings or telephone conferences and the claimant was unable to adduce any witness evidence in support of his position. The claimant has since criticised the respondent for failing to provide the appropriate witness evidence. I have no hesitation in rejecting that allegation because the claimant and/or his union representative knew that it was their responsibility to call any witnesses they wished, and they failed to do so. In any event it is difficult to see how any such evidence could have been relevant in any way given the claimant’s admissions (for which see further below).[32]During the course of the disciplinary proceedings the claimant accepted the following matters:(i) he had attended KB in his professional capacity as a paramedic on 14 April 2015;(ii) he had exchanged telephone numbers during the attendance on 14 April 2015;(iii) he had exchanged text messages with KB and met her in a personal capacity;(iv) he had passed a friend’s telephone number to KB;(v) he had formed a friendship with KB; and(vi) he had attended KB in a professional capacity on 17 April 2015 following initiating a Running Red call.[33]Mr Cleeland-Smith considered that this had put the claimant in fundamental breach of his professional standards. Paramedics are required not to have personal relationships with patients because this leads to professional boundaries becoming blurred. This in turn has the potential that patient care can be compromised, and potential to cause damage to the respondent’s reputation and the public’s confidence in the profession. Mr Cleeland-Smith considered this to be clear from the HCPC Standards of Conduct Performance and Ethics and the respondent’s Conflict of Interest Policy and Code of Conduct.[34]In addition, the claimant admitted that he had fabricated a false account with regard to the Running Red call. He admitted that he had given the Clinical Hub control centre a false story that he had seen somebody flagging down the ambulance from the side of the road, in order to generate the Running Red call.[35]The claimant now attempts to suggest that he has never admitted that the Running Red call was in any way wrong or inappropriate, although he does still accept that the reason he gave to the Control Hub was “a deception”. He tries now to draw a distinction between the respondent incorrectly assuming that he had admitted to a false Running Red call, and what he says is a genuine, reasonable and legitimate Running Red call, but with a minor deception with regard to the reason given.[36]In any event Mr Cleeland-Smith concluded on the evidence before him that the claimant had falsely generated a Running Red call. He concluded that he had not given the full reason to the Clinical Hub because he knew that his actions were inappropriate. He had been dishonest with the Clinical Hub which had prevented them from assessing and then triaging the call. This would have affected the use of the respondent’s resources thereby potentially endangering patients.[37]Mr Cleeland-Smith genuinely believed that the claimant had committed gross misconduct in respect of these two core issues: first, having an inappropriate personal relationship with a vulnerable patient; and secondly, acting dishonestly in connection with the Running Red call. On the claimant’s best case he had admitted the first, and partially at least admitted dishonesty in connection with the second. The respondent’s belief that the claimant had committed gross misconduct was based on these grounds.[38]Mr Cleeland-Smith considered that the MSOC had been unduly complicated because it had gone beyond these two core issues. The claimant had always stressed that he had had the best interests of KB at heart, and Mr Cleeland-Smith felt that too much emphasis has been put on the claimant’s motivations by Mr Cooke’s MSOC.[39]The claimant continued to assert that insufficient guidance or support was given with regard to establishing professional boundaries, and/or that the policies were unclear as to the extent of personal and professional relationships and that this was a grey area. Mr Cleeland-Smith rejected this assertion, for the following reasons. The claimant was a qualified and experienced registered paramedic who was always subject to the professional regulation of the HCPC. The HCPC Standards of Conduct, Performance and Ethics provide guidance and support and also set out the conduct and standards expected of a registered paramedic. As an experienced and registered paramedic the claimant must have known that it is a fundamental principle that paramedics must not confuse the boundaries between professional assistance and personal relationships. Mr Cleeland-Smith concluded that it is a matter of common sense that commencing a personal relationship with a patient could create a conflict of interest, which could affect the care given, would not be in the best interests of the patient, and could be detrimental to the reputation of the respondent. He also concluded that it was incomprehensible that the claimant claimed to be unclear about the need to maintain professional boundaries with a patient, or that exchanging telephone numbers with her whilst on a professional call, and then commencing a personal relationship, would not confuse those boundaries. Mr Cleeland-Smith also concluded that the way in which the claimant had constructed the Running Red call clearly shows that he knew he would get into trouble if his friendship with KB was discovered, which is of course why he deceived the Clinical Hub.[40]For the record, Mr Cleeland-Smith’s decision with regard to each of the allegations was as follows. Allegation 1 was partially upheld, but only to the extent that the claimant had pressurised KB to meet his friend and that he had extensive communications with her outside of his professional duties. This was held to have amounted to gross misconduct. Allegation 2 was rejected because there was insufficient evidence that the claimant’s actions had been to gain KB’s confidence and friendship. Allegation 3 was partially upheld to the extent that the claimant had not provided appropriate care to KB and had not safeguarded her. This had put KB at risk. However the claimant’s actions had not been intentional or neglectful in this respect. Allegation 4 (manufacturing the Running Red call) was upheld as gross misconduct. Allegation 5 was not upheld because there was no evidence that the claimant was texting while providing care or driving. Allegation 6 was partially upheld but only to the extent that the claimant had provided a false statement regarding the Running Red call. To that extent it was a finding of gross misconduct, but was the same allegation as Allegation 4. Allegation 7 was not upheld for want of conclusive evidence. Allegation 8 was partially upheld to the extent that the claimant had criticised the respondent and other services inappropriately.[41]Mr Cleeland-Smith concluded that the claimant’s actions had the potential to harm patients and lead to inappropriate or substandard care; had the potential to bring the respondent into disrepute; breached the respondent’s Code of Conduct Policy; were sufficiently serious to amount to a breach of contract; were contrary to the respondent’s Conflict of Interest Policy; and amounted to serious breaches of contract and dishonesty, in breach of the Disciplinary Policy, and were gross misconduct pursuant to clauses 3.1(c) and 3.1 (k) in the list of definitions of gross misconduct. He considered that the claimant had fallen significantly below the expected standard and had acted in breach of his professional obligations. In addition, throughout the process the claimant failed to show any remorse for his actions, or to acknowledge any wrongdoing. Mr Cleeland-Smith felt that the continued employment of the claimant presented a risk to patients, staff, and the reputation of the respondent. He felt that he had no alternative other than to dismiss the claimant summarily for gross misconduct. Mr Cleeland-Smith’s decision, and the reasons for it, were given in a detailed letter to the claimant dated 4 May 2016. He was also advised of his right to appeal.[42]The claimant appealed by letter dated 4 May 2016. He appealed on the basis that there had been inadequate investigation and insufficient substantiation of the issues; procedural irregularities and unfairness; and unreasonable action. The claimant subsequently produced a written response to the disciplinary outcome to support his appeal, which was in excess of 200 pages.[43]The appeal hearing was before a panel of two and was chaired by the respondent’s HR Director Mrs Emma Wood, who gave evidence to this tribunal, and Mr Smart. The appeal hearing took place on 15 June 2016. The claimant was accompanied by his chosen trade union representative. The appeal was not a complete rehearing of the disciplinary hearing. The appeal hearing was a review of the decision to dismiss in the light of the points which he had raised.[44]With regard to the investigation and substantiation of the issues, the appeal panel felt that MSOC had over complicated the core issues. It had not concentrated on the central elements of the claimant’s conduct but had instead looked for the motivation for his relationship with the patient. Nonetheless the panel considered carefully and then rejected the claimant’s assertions that the investigation was excessive; that it was unduly salacious; that it had been unfairly focused on the extent to which KB was vulnerable; or that KB had been unfairly coerced.[45]With regard to the alleged procedural irregularities, the panel considered the alleged delay and chronology of events. The investigation had taken four months, which it was accepted was lengthy, but given the sensitivity of the matter and the involvement of other agencies was not considered to be excessive or otherwise unreasonable. The subsequent delays had been at the claimant’s request or because of his illness. There was nothing to suggest that they had had any impact on the outcome. The claimant complained that the witnesses whom he wished to question had not been present. However, it was clear from the relevant policy and the information given to the claimant that it was his responsibility to make these arrangements, which he had failed to do. Even when subsequently pursued these witnesses failed to attend to support the claimant. In any event the panel considered that they could not provide any further relevant information given the claimant’s admissions. The claimant complained that he had not been provided with sufficient information or documents, and that there should be a new MSOC, with the new proceedings based on that new MSOC. Again the panel concluded that the claimant and his representative had been provided in good time with all relevant documents and policies, and given the agreed facts and admissions there was no need for a renewed process.[46]The panel also considered the extent to which the decision to dismiss had been an unreasonable action. It was clear to the panel that the claimant had accepted that he had had a personal relationship with a patient which was instigated during a visit to her in his professional capacity. The very fact that she was a patient meant that she was vulnerable, and there was added vulnerability because of her mental health issues. The claimant’s conduct had resulted in KB raising concerns with another healthcare professional who was sufficiently concerned to raise a safeguarding referral. The panel concluded that none of this was in dispute and that it amounted to gross misconduct. Secondly the panel was satisfied that the claimant’s actions had interfered with the care of KB and that he had acted outside the scope of his practice. This was also considered to be an act of gross misconduct. Thirdly, the claimant had admitted that he had initiated a Running Red call, and that he had deceived the Clinical Hub in relation to the reason. This was considered to be another act of gross misconduct. The panel concluded that the decision to dismiss the claimant summarily had been entirely reasonable because his actions had been wholly inappropriate, contrary to Trust policies and expectations, and his professional code, and were generally unacceptable. He had failed to acknowledge that he had done anything wrong, and had shown no remorse. They decided to reject the claimant’s appeal. This decision and the reasons for it were set out in detail in a letter to the claimant dated 22 June 2016.[47]The claimant made a number of concessions and admissions during this hearing. He accepted that it was inappropriate in principle for a paramedic to have a personal relationship with a vulnerable patient without certain safeguards in place. He accepted that he did not discuss the matter with his managers or supervisors and did not seek to put any such safeguards in place. He accepted that his personal relationship with KB was inappropriate. However, he asserts that the conclusion that KB was in any way pressurised is wrong, because it clear from the text message exchange that she would not have continued with the relationship if she was not entirely happy, and no weight was given to this.[48]The claimant also made the following admissions under cross-examination: he first met KB on 14 April 2015 in his capacity as a paramedic; he exchanged telephone numbers with KB; she had a history of mental health issues including post traumatic stress disorder and suicidal ideation; she was vulnerable; more than 300 text messages were exchanged between them; there were two personal meetings between them; the second such meeting on 17 April 2015 was as a paramedic following the Running Red call; during discussions with the Clinical Hub he was dishonest in what he had said; that he stayed with KB for more than two hours on 17 April 2015; that he did not mention this personal relationship to any of his managers; that exchanging personal telephone numbers could affect the reputation of the respondent Trust; and that he crossed his professional boundaries.[49]In addition the claimant maintained his allegation of serious misconduct on the part of Mr Cooke. He alleges that KB was entirely happy with their relationship, and only complained that she felt pressurised after the event as a result of aggressive leading questions from Mr Cooke and/or others which led her to that conclusion. However it is clear from the original safeguarding report that KB had already complained about being pressurised by the claimant before either Mr Cooke or any other managers of the respondent were even aware of the complaint. In my judgment this is a serious and unfounded allegation.[50]Finally, during this hearing the claimant also conceded that he was happy for his conduct to be judged on the contents of two documents, namely his Response to the Management Statement of Case, which was presented before the disciplinary hearing, and which ran to 70 pages, and secondly the document which he presented to the appeal panel, in response to the decision to dismiss him, and which ran to over 200 pages. It is clear however that these documents were fully taken into account by the relevant decision makers both at the dismissal and appeal stages. Although the claimant now says he is content to be judged on these documents, that is in part at least effectively what happened, but he still disputes the outcome.[51]Having established the above facts, I now apply the law.[52]The reason for the dismissal was conduct which is a potentially fair reason for dismissal under section 98 (2) (b) of the Employment Rights Act 1996 (“the Act”).[53]I have considered section 98 (4) of the Act which provides “…. 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”.[54]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 (“the ACAS Code”).[55]I have considered the cases of Post Office v Foley, HSBC Bank Plc (formerly Midland Bank plc) v Madden [2000] IRLR 827 CA; British Home Stores Limited v Burchell [1980] ICR 303 EAT; Iceland Frozen Foods Limited v Jones [1982] IRLR 439 EAT; Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR; Taylor v OCS Group Ltd [2006] ICR 1602 CA and Polkey v A E Dayton Services Ltd [1988] ICR 142 HL. The tribunal directs itself in the light of these cases as follows.[56]The starting point should always be the words of section 98(4) themselves. In applying the section the tribunal must consider the reasonableness of the employer’s conduct, not simply whether it considers the dismissal to be fair. In judging the reasonableness of the dismissal the tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might take one view, and another might quite reasonably take another. The function of the tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.[57]The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. A helpful approach in most cases of conduct dismissal is to identify three elements (as to the first of which the burden is on the employer; as to the second and third, the burden is neutral):(i) that the employer did believe the employee to have been guilty of misconduct;(ii) that the employer had in mind reasonable grounds on which to sustain that belief; and(iii) that the employer, at the stage (or any rate the final stage) at which it formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances of the case. The band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss.[58]Throughout these proceedings the claimant has raised a large number of procedural and substantive complaints about the respondent’s conduct, process and decision making. He summarised his position in his closing submissions and distilled his complaints into the following seven general allegations of unfairness, and each one was supported by further allegations and complaints. I now deal with each of the claimant’s seven key concerns in turn.[59](1) I believe my employer broke their obligations to my contract of employment. They did not follow a fair and unbiased procedure through their process. Their investigation was flawed and I was prevented from questioning witnesses.[60]I find this allegation to be wholly unsupportable and I reject it. The respondent was first alerted to the claimant’s misconduct by independent third parties through a safeguarding referral. The respondent was required to investigate thoroughly, and was entitled contractually to suspend the claimant on full pay, which it did. The reasons for the suspension were explained in a reasonable and sensitive manner. There was then a full investigation during which all relevant personnel were interviewed, and which involved an investigation meeting with the claimant, a full disciplinary hearing, and an appeal hearing. The claimant was fully aware throughout this process of the allegations which he had to face, and the fact that they were of a serious nature and might result in his dismissal. He was accompanied by his chosen trade union representative throughout. On occasions the proceedings were postponed at his request. The claimant had been provided with all the relevant documents, policies and information. He was able to state his case fully in response to the allegations against him. His responses and his detailed documents in response to the allegations were considered in full. It is simply not true that the claimant was prevented from questioning witnesses. He was able to question the respondent’s witnesses. He was aware of the requirement to make arrangements for his own witnesses, and failed to do so. The decision-makers at the disciplinary and appeal levels were unbiased and independent of the earlier investigation and decisions. Although there was a delay of four months during the investigation process, it was a sensitive matter involving other agencies and there was no delay which could have been said to have been unreasonable or unfair. The process adopted by the respondent was in accordance with its disciplinary and appeal policies. In my judgment the respondent has clearly done more than enough to satisfy the test that it had carried out as much investigation as was reasonable in the circumstances of this case.[61](2) I believe the actions of the investigators were inappropriate and resulted in corruption of the report and bullying of the patient and staff witnesses, particularly Steve Williams.[62]In my judgment there is simply no evidence to suggest that the behaviour of the investigators was in any way corrupt or inappropriate, or that KB or any other witnesses were bullied into providing false evidence. It is clear that KB gave evidence of her own volition that she had felt uncomfortable and pressurised by the claimant to her own CPN which resulted in the safeguarding referral. This was in place long before the respondent’s managers even knew of the claimant’s conduct. In any event it misses the point that the MSOC was not the reason for the claimant’s dismissal. Rather, the claimant admitted crossing professional boundaries and deceiving the Clinical Hub controller and the respondent concluded, on the claimant’s own evidence, that this amounted to gross misconduct and was sufficient to dismiss him.[63](3) There was inadequate guidance and training provided with regard to professional boundaries. This is despite Mrs Wood admitting in cross-examination that there were previous cases of staff being disciplined and/or dismissed for professional boundary issues. This indicated that SWAST knew they had a problem in this area.[64]In my judgment this is another example of the claimant’s conduct throughout the investigation and these proceedings in which he fails to accept the consequences of his own misconduct, and seeks to explain it or justify it by spurious means. On the one hand this head of alleged unfairness claims that there was inadequate guidance and training provided with regards to professional boundaries. On the other hand the claimant admitted in these proceedings that it was inappropriate for a paramedic to have a personal relationship with a vulnerable patient without certain safeguards in place, and that he failed to discuss the matter with his managers, and did not try to put any such safeguards in place. I am in no doubt that the claimant was fully aware of the various policies and procedures which required him not to cross professional boundaries in the way in which he did. It is abundantly clear from the respondent’s policies, as well as his own HCPC guidance and requirements. In addition, it is a reasonable conclusion to draw from his own admission of his deception of the Clinical Hub operator that he would be in trouble if the real reason for the manufactured Running Red call was made clear. It is also clear from Mrs Wood’s evidence that the respondent does not have a consistent problem with the blurring of professional boundaries, that the policies are simple and clear, and that the respondent will take necessary action where appropriate.[65](4) During the appeal I faced allegations which I believe I was never originally charged with that of simply defending the patient. I was never allowed to present any response to this, question witnesses or put forward mitigation for consideration.[66]This assertion of unfairness is simply untrue. The claimant was always required to face the eight specific allegations in the MSOC. The fact that Mr Cleeland-Smith chose not to uphold all of these allegations, and rejected some of them, shows that he considered them individually and carefully, and was content to focus on the core issues. These were that the claimant had admitted to having an inappropriate personal relationship with a vulnerable patient; and had admitted deceiving the Clinical Hub operator. These in short were the reasons why the claimant was dismissed for gross misconduct. This was the decision which was reviewed on the appeal. The allegations which the claimant was required to face had not changed. It is plainly untrue that the claimant was not allowed to present a response, when he did so at great length to both the disciplinary and appeal panels. He was allowed to question witnesses in accordance with the relevant procedure, and failed to call any of his own. The respondent also considered such points in mitigation as were presented by the claimant, but equally were entitled to note his aggressive and truculent attitude during the various proceedings, his very worrying failure to accept that he had done anything wrong, and his complete lack of remorse.[67](5) To set the matter in context it is my belief that the MSOC exacerbated the circumstances of this case in order to exploit an opportunity to dismiss me from an organisation with which I have been at odds for some time.[68]This assertion misses the point that the respondent’s investigation and consequent MSOC were prompted by the safeguarding referral from independent third parties and that the respondent was required to investigate the circumstances. There is no evidence that the respondent “exploited this opportunity to dismiss” the claimant, and no evidence, for example, that it might not have taken the same action against other employees in the same circumstances. The respondent was entitled to conclude that the claimant had committed gross misconduct, and to apply what it considered to be the appropriate disciplinary sanction.[69](6) The respondent has never adequately explained their thinking behind the decisions that were taken. Whilst they dropped the allegation that I manipulated the patient for my own benefit I was never allowed to discuss what the motivation would otherwise be.[70]This assertion is also untrue. The reasons for the decisions which the respondent took by way of dismissal and rejecting the appeal were explained in detail in the letters confirming each of those decisions. It is not true that the claimant was "never allowed to discuss what the motivation would otherwise be” because the claimant was always fully aware of the allegations against him, and had every opportunity to state his case in the presence of his chosen representative, and by way of his lengthy documents which were presented to both the disciplinary hearing and the appeal.[71](7) Dishonesty on my part is admitted only in connection with the reason given for how I became aware that a running red call was required. Considerable mitigation has been put forward for this. The information that I was asked about by the dispatcher is not required for a running red to be successfully initiated.[72]This final point follows the assertion made by the claimant during this hearing to the effect that the respondent has misunderstood or exaggerated his admission of dishonesty concerning the Running Red call. He claims that the Running Red call was entirely genuine and justifiable, and arranged in accordance with normal accepted procedures, and that the only dishonesty to which he admits is "a deception” in his call to the Clinical Hub as to the circumstances in which it had arisen. In all other respects he asserts that the call was appropriate and justifiable, and in accordance with the respondent’s accepted procedures. In the first place this misses the obvious point that even the deception to which the claimant admits is an act of dishonesty, and is therefore an act described as gross misconduct such as to justify summary dismissal in the relevant disciplinary procedure. In any event the respondent’s conclusion went beyond this. The requirement to report a Running Red to the Clinical Hub is effectively a requirement to seek confirmation of instructions. The Clinical Hub will need to triage the job, and to assign ambulance resources depending upon an overall picture of the relevant circumstances in the region. Any deception in this process can obviously affect the appropriate deployment of the respondent’s emergency services. Given the context of the text messages (during which the claimant had suggested to KB that his ambulance might call on her), and the claimant’s clear deception as to the circumstances in which the Running Red had arisen, the respondent was plainly entitled to conclude that the claimant had deliberately manufactured a false Running Red call (in order to call on KB), and had lied to the Clinical Hub about its circumstances. He then spent more than two hours with KB during which time four other ambulances had to be dispatched in the area. The respondent was entitled to conclude that the claimant’s deliberate deception could well have had an impact on the effective deployment of its emergency services. It is clear that the respondent genuinely believed that this was an act of gross misconduct, and in my judgment that belief was based on reasonable grounds.[73]In conclusion, this is an extraordinary case in which the claimant has effectively admitted gross misconduct but nonetheless gone to considerable lengths to challenge his dismissal which was the the unsurprising and natural consequence of his actions. The very length of this judgment shows the complexity of the matters raised, and the repeated allegations by the claimant that various others were to blame throughout the process in an attempt to assert that he was unfairly treated. As it happens, the law is straightforward, and so is the evidence against the claimant upon which the respondent’s decision was based.[74]In the first place, for the reasons set out above, there was a full and fair disciplinary process. This was prompted by a safeguarding referral by independent third parties. The claimant was aware throughout the process of the allegations which he had to face, he was aware that they might result in his dismissal, and he was entitled to state his case in detail against those allegations in the presence of his chosen trade union representative. There was suspension on full pay; a detailed investigation; a full disciplinary process; and a further review on appeal. At each stage the managers involved were independent of the previous stages. The claimant had been entitled to question the respondent’s witnesses, and failed to rely on any of his own. The procedures were in accordance with the respondent’s own policies and procedures, in accordance with the ACAS Code, and in accordance with the normally accepted concepts of reasonable industrial relations. The overall investigation was full, fair and reasonable, and it is clear that the respondent carried out as much investigation as was reasonable in the circumstances of the case.[75]Secondly, it is clear that the respondent genuinely believed that the claimant had committed gross misconduct. The evidence of Mr Cleeland-Smith and Mrs Wood to this effect was not challenged.[76]Thirdly, it is clear that the respondent’s genuine belief in the claimant’s gross misconduct was based on reasonable grounds, and at a time when it had carried out as much investigation as was reasonable. There were two clear examples of gross misconduct, explained in detail above. In short they were as follows. First the claimant had formed a personal relationship with a patient who was vulnerable with mental health issues. The claimant admitted that he had done so. It was in clear breach of various policies and the claimant’s own professional guidelines, and potentially compromised the health and wellbeing of the patient, and risked reputational damage to the respondent. Secondly the claimant had acted dishonestly in arranging the Running Red call. The claimant admitted to "a deception". It was dishonesty and an act of gross misconduct. In addition the respondent was also entitled reasonably to conclude on the evidence before it that the Running Red call had been deliberately arranged by the claimant and based on a deception which had potentially affected the appropriate allocation of emergency resources. That too was an act of gross misconduct.[77]In conclusion, this case is no more complicated than this: the respondent genuinely believed that the claimant had committed gross misconduct; that belief was based on reasonable grounds; and that belief was held at a time when the respondent had carried out such investigation as was reasonable in all the circumstances of the case.[78]Bearing in mind the claimant’s aggressive attitude, his failure to accept that he had done anything wrong, and his failure to show any remorse, the respondent was not confident that the claimant would conduct himself appropriately in the future, and it decided that summary dismissal was the appropriate sanction.[79]There is a band of reasonable responses to conduct of this nature within which one employer might take one view, and another might reasonably take another. It is not for the tribunal to substitute its view for that of the respondent. The function of the tribunal is to determine in the particular circumstances whether the decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted. I find that dismissal was within the band of reasonable responses open to a reasonable employer when faced with these facts.[80]Accordingly I find that even bearing in mind the size and administrative resources of this employer the claimant’s dismissal was fair and reasonable in all the circumstances of the case, and I therefore dismiss the claimant’s unfair dismissal case.[81]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 4 to 50; a concise identification of the relevant law is at paragraphs 52 to 57; and how that law has been applied to those findings in order to decide the issues is at paragraphs 58 to 80.