MRS M GOKCE v SCOTTISH AMBULANCE SERVICE [2007] UKEAT 0093_06_2808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0093_06_2808Case No Appeal No. UKEATS/0093/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MRS M GOKCEAPPELLANTSCOTTISH AMBULANCE SERVICERESPONDENT
Before
Mr Justice EliasDate 28 August 2007
[1]APPEARANCES For the Appellant MRS M GOKCE (The Appellant in Person) For the Respondent MR J CRAN (Solicitor) Princes Exchange, 1, Earl Grey Street, Edinburgh EH3 9AQ SUMMARY UNFAIR DISMISSAL - Exclusions including worker/jurisdiction - Reasonableness of dismissal - Procedural unfairness/automatically unfair dismissal The Appellant was one of three employees dismissed for allowing an ambulance to be used for an improper purpose. She claimed that she had been unfairly dismissed but the Employment Tribunal rejected her case. She alleged that the Tribunal had made various errors of law, particularly in concluding that dismissal was a fair sanction. The EAT held that no such errors had been made. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is an appeal against the decision of the Employment Tribunal sitting in Glasgow in which it held that the Appellant, Mrs Gokce had not been unfairly dismissed. The hearing below took some ten days. We shall refer to Mrs Gokce in this judgment as the Claimant, as she was below. She has represented herself before us and the Respondents have been ably represented by Mr Cran. The background[2]There were three employees dismissed at the same time. They worked in the Respondent's emergency medical despatch centre which received calls requesting an ambulance. Usually these were initiated by the caller telephoning 999. Mrs MacDonald was a duty manager in the control room; Mrs Connor was a dispatcher in the control room, as was the Claimant, Mrs Gokce.[3]The background to the way in which the control room operates and how it ought to handle different kinds of calls is summarised in the Tribunal's decision at paragraphs 13-25. We will not set it out in detail. In substance there are three different categories of call - life threatening, serious, and neither series nor life threatening. Whilst the call taker is taking details of the call, the dispatcher is finding the most appropriate ambulance available. Depending on the demand at the time of a call, it may result in no ambulance being sent, or if one is sent, it may be recalled to deal with a more serious incident.[4]Clinicians seeking an ambulance for a patient and staff would use a separate telephone line. Exceptionally, ambulance crew might be taken home for domestic reasons, but not if it might prejudice a more urgent call.[5]When the ambulance crew attend a patient he or she will be taken to the nearest accident and emergency department unless the patient declines medical treatment. In those circumstances, however, the ambulance will require the patient to sign a patient refusal form and will not take the patient home. That should only occur on discharge from hospital or in other very highly exceptional cases.[6]All calls are recorded, as are the calls between the ambulance crew and control staff. The Facts[7]We briefly set out the facts, as found by the Tribunal, concerning the incident giving rise to the dismissal of the three women. On 28 August 2003 Mrs Connor contacted Mrs Gokce on the telephone line normally used by clinicians and staff and asked for someone to take Mrs MacDonald "up the road". It was accepted that this meant to take her home. Mrs Connor asked Mrs Gokce not to tell Mr Clyde. He was the duty manager of the control room at the relevant time. Mrs Gokce arranged for a crew of two to attend the premises which were in fact a night club. It appears that Mrs MacDonald had been intoxicated and she was taken home by the ambulance crew. The two crew members were Mr Anderson and Mr Martin.[8]This incident had come to the attention of Mr Kennedy, a general manager, as a result of information given to him by Mr Murphy, the senior manager responsible for the control room. Mr Kennedy was informed on 17 September about the incident.[9]Mr Kennedy was told to carry out an investigation by his line manager, which he did. He was assisted by Mrs McKinney, head of personnel. The three Claimants were suspended pending the outcome, but the two ambulance crew were not. Mr Kennedy heard a transcript of the conversation between Mrs Connor and Mrs Gokce. There was a later conversation between Mrs Gokce and Mr Anderson, one of the crew, when Mrs Gokce said that Mrs MacDonald "is seriously not well" and she is looking to "get her probably right home, I don't know". Mrs Gokce also at that stage approved a domestic request for Mr Martin to go home to let his partner into her flat. In fact, it appears that that did not happen.[10]Interviews were carried out between 23 and 25 September. Mrs Gokce confirmed that she was told by Mrs Connor that Mrs MacDonald was unwell and she should not inform Mr Clyde. However, no information had been requested by Mrs Gokce as to Mrs MacDonald's condition. Accordingly, the request did not fall within any of the standard three categories.[11]Mr Kennedy concluded that there should be disciplinary proceedings instigated with respect to each of the Claimants for alleged gross misconduct. He also recommended disciplinary hearings for the two crew men. The allegations against Mrs Gokce, as identified in his investigation report, were as follows:(1) Wilful mistrust of Service resources by activating an emergency ambulance to take a colleague home from a nightclub.(2) Wilful disregard of procedures which has serious implications for Service users by conspiring the calling of the ambulance from the duty officer.(3) Wilful disregard of procedures which have serious implications for patients by deploying an emergency resource to an incident which did not warrant an ambulance response and contributed to the delay in responding to at least one 999 call.[12]The third allegation relates to the fact that Mr Kennedy formed the view that there had been a delay of some 3 minutes in responding to an emergency call as a result of the unavailability of the ambulance crew when they were dealing with Mrs MacDonald.[13]The next stage was for formal disciplinary hearings to be held with regard to each of these women. The allegations were identical to those outlined by Mr Kennedy in his investigation report. They were carried out by Mr Spence, after he had discussed the investigation reports with Mr Kennedy. Separate disciplinary hearings were carried out by a Mr Colbourne with respect to the two crewmen.[14]The disciplinary hearings for the women were held on 3 October. The Claimants were represented by a union representative and the Respondent's case was presented by Mr Kennedy.[15]Following the disciplinary hearing Mr Spence, who was a senior manager, considered that each of the women should be dismissed. He gave his reasons for the decision to dismiss Mrs Gokce. First, she did not comply with procedures. There was no indication that Mrs MacDonald was seriously ill and, of course, Mrs Connor had not been asked about the nature of any alleged illness.[16]Second, the deliberate decision not to notify the duty officer was considered to be a wilful disregard of Service procedures. It was unprofessional and unacceptable, and would prevent the duty officer from ensuring that ambulances were properly deployed.[17]Similarly, with respect to the third allegation, the effect of sending the ambulance on this unimportant request meant that there was a delay in the response to an emergency call.[18]Mr Spence considered each of these, taken separately, to be gross misconduct. He also considered that the Service had been brought into disrepute by Mrs Gokce's actions. He took into account her length of service - some sixteen years, her obvious regret for the incident, and the commitment she had in the past shown to her work, but he concluded that nonetheless she should be dismissed.[19]There were separate disciplinary hearings for Mr Anderson and Mr Martin. Mr Colbourn, who carried out those hearings, did not consider that their conduct merited dismissal, but they were given written warnings. There had been some confusion over the nature of the call and it was difficult for them to refuse a request to be taken home by a senior officer.[20]Each of the women appealed against the decision to dismiss them. At the appeal hearing, Mrs Gokce maintained that the crew had been asked to assess Mrs MacDonald's condition and report back to her. The Tribunal rejected this on the grounds that the control room staff have no input in the assessment of a patient.[21]Ms Rogers, who heard the appeal, effectively confirmed the decision of Mr Spence for the same reasons. This was not an emergency matter; Mrs Gokce deliberately chose neither to tell her superior nor did she enter the information on the respondent's systems; and it in fact caused some delay in handling a true emergency.[22]She also drew a distinction between the fault of the Claimants and the crew. The crew responds to instructions to attend a patient, and whilst the crew should not have taken Mrs MacDonald home, she felt they were less culpable than the three women.[23]Before the Tribunal Mrs Gokce gave evidence that she thought she had authority to send an ambulance to the night club. The Tribunal rejected that on the grounds that it had never been previously suggested by her that she had.[24]The Tribunal then considered whether the dismissals were fair. They were critical of the original investigation on the grounds that Mr Kennedy ought not, under the relevant disciplinary procedures, to have formulated the allegations against the three Claimants. He should simply have recommended that further action be taken. However, they were satisfied that these procedural defects were insignificant and did not amount to procedural unfairness.[25]They made various findings with respect to Mrs MacDonald and Mrs Connor, which we do not need to analyse. They then observed that Mrs Gokce had sent the ambulance without making any effort to obtain details of Mrs MacDonald's condition, and without advising the duty manager. She did so being aware of an outstanding emergency. They considered that the investigation was full and thorough, and indeed they noted that the essential facts were not in dispute.[26]Whilst further investigations may have demonstrated some wider knowledge of the incident by other employees - and the Tribunal emphasised that they were not saying that they necessarily would - the investigation carried out with regard to these three Claimants was adequate.[27]They then went on to consider whether the decision to dismiss was fair. They accepted that the standards of behaviour expected of a senior manager are higher than those expected from employees holding a lower graded post; and concluded that it was legitimate for the employers to have treated the actions of the crew as being less grave than those of the three women. They referred expressly to the decision of the EAT in Hadjiannou v Coral Casinos [1981] IRLR 352 and to the judgment of Waterhouse J where he indicated that there would be very few cases where a disparity argument would be likely to succeed. The Tribunal was very clear that this was not one of them because of the differing culpability of the crew compared with the control staff.[28]They then went on to consider whether dismissal was a reasonable sanction in all the circumstances, referring to the judgment of Lord Denning in British Leyland v Swift [1981] IRLR 91, who indicated that the correct test is as follows:
"Was it reasonable for the employer to dismiss? If no reasonable employer would have dismissed him then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one and another quite reasonably take a different view."
In the light of that direction, they were satisfied that the employers were entitled to take the view that this was gross misconduct, justifying dismissal. The grounds of appeal[29]There are essentially three principal grounds of appeal in the original notice of appeal, although the Claimant has sought to advance fresh grounds before us. There is an objection to those grounds being advanced now. However, they seem to us to add little to the original grounds, and in any event they can be dealt with readily on the papers before us. Given in particular that the Claimant is acting in person, we allow those grounds to be argued and allow the amendment, in so far as any formal permission is necessary. We shall deal first with the original grounds.[30]The first ground in the original appeal is that the Tribunal erred in accepting that the employers had reasonable grounds for concluding that the Claimant had committed the misconduct alleged against her. That is manifestly unsustainable; much of her conduct was admitted before the Tribunal, and it plainly gave a basis for the employers to take the view that she had acted improperly.[31]Certain more specific matters were then identified under this head. As Mr Cran, representing the Respondent, pointed out, they are really distinct grounds in their own right. First, it is said that it was an unfair characterisation of Mrs Gokce's conduct to say that it was wilful. Moreover, it is alleged that she did not have the same degree of responsibility as Mrs MacDonald because she was not a senior controller. She should have been treated in the same category as the crew members, being no senior to them. Finally under this head it is said that the investigation ought to have involved other individuals.[32]We reject all those points. This was plainly 'wilful' conduct in the sense that what was alleged was deliberate misconduct; it was not simply an act of carelessness or negligence. We do not understand on what basis the Claimant contends otherwise. It is true that a different internal body had concluded that the crew member's misconduct had not been wilful, but as the Tribunal noted, that was far from an inevitable conclusion. Indeed, it seems to us that once the Tribunal had concluded that the employers were entitled to find that the misconduct had been committed, it is difficult to see how it can be described as anything other than wilful. Similarly, in our view the Tribunal was entitled to find that the employers had a proper basis for treating the Claimant more severely than the crew members. We return to consider this below. Finally, it is not a ground of unfairness to identify potential misconduct of others who might have been investigated further. The employers investigated those who appeared to them to be most directly involved in the incident. The fact that they might, but did not, trawl wider is not a ground for treating these employees as having been unfairly treated.[33]The second and third grounds are interrelated. It is alleged that the Tribunal ought to have concluded that the procedures were unfair and that in particular Mr Kennedy had stepped beyond his remit. The Tribunal did indeed identify certain procedural weaknesses by him. For example, they held that he acted in breach of the established procedures in formulating the charges against these women, but held that in the circumstances this was not significant. It was for the Tribunal to assess the significance of that defect, and their analysis is unimpeachable. We think they were fully entitled to say that it was of relatively minor significance in circumstances where there was a full opportunity, with a union Representative to act for them, for each of these women to make their representations before Mr Spence and then again on appeal. There was no fundamental unfairness in the approach. Indeed, as the Tribunal noted- although we appreciate that the Claimant now disputes this- the essential facts were not really in dispute.[34]Finally, it is said that the sanction of dismissal was not appropriate. This is really a re-run of what was argued before the Tribunal, although now the Claimant has to establish that it was not open to the Tribunal to conclude that this was a sanction which the employers could properly employ.[35]One argument here appears to be that the Tribunal simply asked whether it was a reasonable sanction without asking whether it fell within the band of reasonable responses. Such an approach would in fact have assisted the Claimant, but in any event we reject the ground advanced. The Tribunal set out the law clearly and accurately as even a cursory examination of its decision shows.[36]There were then two further more particular grounds on which it was asserted that the Tribunal's conclusion on this point was erroneous in law. First, it is submitted that the different treatment of the crew was unjustified. This relates to the point we have already touched upon, namely that the Claimant was junior to Mrs MacDonald and should have been treated in the same way as the crew members, being essentially in a similar position to them. We reject that. The Tribunal carefully considered this argument and reminded themselves of the relevant case law, including such cases as Hadjannou v Coral Casinos [1981] IRLR 352 approved by the Court of Appeal in Paul v East Surrey Health Authority [1995] IRLR 30. They took the view, which we think they were fully entitled to do, that the employers could properly draw a distinction between the treatment of the crew and the treatment of the control staff. Their roles in the incident had been different. We think that it was open to the Tribunal to conclude that the employers were entitled to treat the gravity of the Claimant's conduct as more serious than that of the crew members. This is not one of those exceptional cases where a disparity argument was bound to succeed.[37]Secondly, the Claimant contended that there was previous practice relating to domestics which suggested that dismissal should not occur. As we have mentioned, there were occasions when an ambulance was allowed to be used for crew members in domestic difficulties. That was not this case; and plainly those involved recognised this to be the position since they were so keen that the duty manager should not be told about it. The employers here were faced with deliberate misconduct where Mrs Gokce was helping a friend, but thereby putting at risk the operation of the emergency service. No doubt she did not appreciate the full gravity of that at the time and it may be that other employers in the circumstances would have given her a final warning and, given her previous commitments to the Service, allowed her to continue. But the question is whether a reasonable employer could take a different view. We have no doubt, as the Tribunal found, that a reasonable employer could indeed say that this was too serious to let pass.[38]For these reasons, we consider that the appeal on the grounds as originally formulated fails.[39]We briefly mention the additional grounds she now wishes to advance. She suggests that it was unjust for her case to be heard together with the other two women because they were senior to her. We reject that; it was obviously sensible for all the cases arising out of this same incident to be heard together. It was incumbent on the Tribunal then to consider the facts relating to each of the women separately, but they did that. Then it is said that certain documents were not produced until the hearing, and that there was no proper opportunity for Mrs Gokce to consider them. Again, nothing procedurally unusual happened here. There was no request for an adjournment to deal with the documents, and indeed the case went on for ten days before the Tribunal. It is unreal to suggest that the procedures here were unfair to the Claimant.[40]There is one final matter which we must discuss. Before us, the Claimant appears to have run an argument which was not advanced below, or if it was, could not have been advanced with any conviction. She told us that she feels that she has been made a scapegoat for the incident. She alleges that she had virtually no involvement in the incident at all, and that the real culprit was Mr Clyde, the officer on duty that night. He it was, she suggests, who dispatched the ambulance. She further suggests that he has since in some way distorted the records to conceal his own wrongdoing and to shift the blame to her. She has sought to have further fresh evidence admitted in order to assist her make good this submission. However, that application was determined against her on paper by the Honourable Lady Smith, as was an application that she review her decision. Her Ladyship held that the established criteria for allowing such evidence were not met.[41]In any event, apart from any other consideration, it has to be said that all the material before the court, as well as the recollection of Mr Cran who appeared for the employers below, suggests that the case was not run at any previous stage in the manner now advanced. We simply identify four matters which strongly support this. First, this was not her case before the internal disciplinary tribunal. Second, in the application to the Employment Tribunal her case was that she had despatched the ambulance; nowhere was it suggested that there had been a terrible mistake, or an attempted cover up by Mr Clyde. Third, no reference is made to this argument in the decision of the Tribunal –an astonishing oversight if this had been her case. Fourth, in the amended grounds of appeal it is accepted that the conduct of the Claimant was "possibly reprehensible". That is wholly inconsistent with the claim now being made that she did nothing wrong. It follows that the fresh evidence would not in any event assist in demonstrating any error by the Tribunal.[42]This interlinks with another of the Claimant's arguments. She is critical of the fact that she has requested to hear the original recordings, which we are told are on magnetic tapes, but has only been allowed to hear tapes derived from the original. In fact Mr Cran told us that where there was some uncertainly about the accuracy of a particular tape her legal Representative at that time was permitted to hear the original magnetic recording. The Tribunal refused to hear even the tapes but had transcripts which were available to all the parties. Mrs Gokce says that they were not, therefore, able to identify the tape manipulation which had occurred. However, given the way the case appeared to be presented to them it was perfectly sensible for the Tribunal to act on the basis of what appeared to be perfectly accurate transcripts. As the Tribunal noted, the essential facts as presented to them were not in dispute. The real issue was whether the employers were entitled to dismiss in the light of them. Conclusion[43]We see no error of law by the Tribunal. It follows that the appeal must be dismissed. We would only add this. We have no doubt that Mrs Gokce feels deeply aggrieved by her treatment. She gave sixteen years service to the Ambulance service and considers that her dismissal is unjust and a poor reward for her commitment. She feels that it is only the interest of the press which led to the investigations at all. She has been subjected to adverse press criticism and has lost her job. We understand her feelings. She made a serious error of judgment in helping a friend and colleague – although she now denies that she has done so - and has had to pay dearly for it. We all do foolish things which often do not have the same serious consequences. We do not for one moment doubt her basic integrity. Our investigation is a narrow one. We must ask ourselves whether the Tribunal has reached a decision properly open to them on the evidence before them. We have no doubt that it was. On the evidence before them the misconduct was clear. The only real issue was whether the employers in the circumstances were entitled to consider it grave enough to warrant dismissal. For the reasons we have given, we think that they were. Accordingly, the appeal cannot succeed.