East Of England Ambulance Service NHS Trust v Sanders (Unfair Dismissal : Procedural fairness/automatically unfair dismissal) [2016] UKEAT 0319_15_1102

EAT
East Of England Ambulance Service NHS Trust v Sanders (Unfair Dismissal : Procedural fairness/automatically unfair dismissal)
[2016] UKEAT 0319_15_1102 · 2016-02-11
[1]This is an appeal from a decision of the Employment Tribunal (“the ET”) sitting at East London, after a seven-day hearing. In a Judgment sent to the parties on 16 July 2015 the ET upheld the Claimant’s claim that she had been unfairly dismissed. It dismissed her claim that she had been discriminated against on grounds of disability, and it upheld her claim that she had suffered a detriment as a result of a protected disclosure. That third aspect of the ET’s Decision has not been appealed by the Respondent.[2]On 4 November 2015, having considered the papers, HHJ Shanks allowed the appeal to go to a Full Hearing. I shall refer to the parties as they were below. The Respondent was represented by Ms Crowther of counsel, and the Claimant represented herself. I am grateful to both of them for their clear written and oral arguments. The Facts[3]As the ET observed in paragraph 16 of their Reasons, this was a case in which the events were heavily documented. The ET said that for a substantial amount of the evidence the parties were agreed about what took place. Where there were significant disputes about the facts they would record their findings, and the reasons for those findings.[4]The Claimant was employed by the Respondent from 21 June 2004 until her summary dismissal after a disciplinary hearing on 17 January 2013. She was employed as an Emergency Medical Technician (“EMT”). Among the Claimant’s duties as an EMT were to drive or be a crew member of an ambulance, to make initial assessments as required on emergency call outs, to write up clinical records of visits and assessments that had been done, and to take patients to hospital as required. The ET recorded that the Respondent is a large employer. There was some uncertainty among the Respondent’s witnesses about the size of the workforce, but it had been described in the amended ET3 as being 4,000 employees. The ET said:
“20. … It has, as one would expect of a large organisation, a management hierarchy, a dedicated Human Resources Department and numerous policies.”
[5]The Claimant’s main workplace was Saffron Walden. The “hierarchy” of the Respondent at the relevant times was set out in paragraph 21 of the ET’s Reasons, and I do not consider it is necessary to go into any more detail than that. At paragraph 30 of their Reasons the ET found that both the Claimant and a Mr Westrip agreed that for part of her period of employment she had had a good relationship with him - for example where they had taken cigarette breaks together - but their relationship had declined after Mr Westrip had started to invoke absence management procedures after the Claimant’s accident at work in July 2010. The ET recorded that the Claimant felt bullied by Mr Westrip but that his view was that he had supported her. The ET said that the tone of his emails was supportive and professional. There was little evidence that he knew that the Claimant had a recurrent or long-term depressive illness, which was the basis of her disability discrimination claim.[6]The ET said that the Claimant had wanted to go on training courses in order to make progress in her career. Two managers had refused most of those requests because of her record of sickness absence. The Claimant then made a grievance about that on 4 June 2012. The details of that grievance were set out in paragraph 48 of the ET’s Decision. In paragraph 49 the ET recorded that there was a dispute between the parties about whether the Claimant’s grievance was solely, or almost solely, against Mr Westrip, or whether it was also against other managers. The ET’s view, having analysed the grievance, was that it was almost entirely expressed at Mr Westrip although others were involved, such as Mr Turner. The ET dealt in some detail with the progress of that grievance and found (in paragraph 58 of their Reasons) that up until the end of August 2012 delays in processing the grievance had been more in the Claimant’s hands than in those of the Respondent, and indeed a Ms Campbell had been sending reminders to the Claimant.[7]The ET recorded that the Claimant made a report about her accident at work on 17 July 2010. The ET held that that was a protected disclosure. The ET also referred to a complaint that the Claimant made about a Mr Robinson and a hospital sister about an incident when the Claimant had disregarded an instruction to take a stroke patient to Addenbrooke’s Hospital. The Claimant had taken her instead to the Accident & Emergency Department at Harlow Hospital. She and Mr Robinson had had “a confrontational exchange of words”. The Claimant then made a Datix report about that. The Respondent had alleged that that report was made in bad faith, but the ET found in paragraph 67 of their Reasons that the complaint was not made in bad faith.[8]At paragraphs 68 to 80 of their Reasons the ET dealt with the “Incident giving rise to complaint and subsequent disciplinary process against [the] Claimant”. They found that on 22 and 23 August 2012 the Claimant had been driving an ambulance. The crew member was Ms Davison, who had the same job title, experience and qualifications as the Claimant. There were a number of incidents that night. The crew were called out to a patient. His GP had visited out of hours and had written a referral letter. In paragraph 70 of their Reasons the ET summarised the terms of that referral letter in a way that both parties agree is accurate. The ET said this:
“70. … The GP wrote a referral letter, which the Claimant read in the course of her visit to the patient’s hour [sic]. The GP referral note stated that the patient had fallen onto his right hip, was not able to weight bear, new RIH appeared (this was a reference to the patient having a hernia), previous history of fractures.”
[9]The ET recorded in paragraph 71 of their Reasons that exactly what had happened during the visit was a matter of dispute between the parties, but they went on to record in the paragraphs following paragraph 72 those matters that were not disputed. Those included that the expectation of the GP who had examined the patient was that he would be taken to hospital in the ambulance being driven by the Claimant. On entering the property, the ET said, the Claimant made a comment about the stairs being steep. The Claimant took over the investigation of the patient’s injury although she would normally have expected Ms Davison to have taken the lead as the Claimant was driving the ambulance. The Claimant and Ms Davison did not take the patient to hospital but told the patient’s family that they should arrange for him to get to hospital. That decision was made after the Claimant had telephoned and spoken to the out of hours GP. The patient had difficulty in getting out of the property. In the course of his doing so the Claimant accepted (in the subsequent disciplinary processes, though not initially when a statement was taken from her), she had told the patient to “man up”. Her explanation for this remark was that it was intended to be light-hearted.[10]The ET said in paragraph 75 of their Reasons that the patient’s father complained about the treatment his son had received from the Claimant and Ms Davison. The initial record of the complaint recorded that the son of the complainant had had an accident, the GP had asked for an ambulance, the two female crew had displayed “an appalling attitude”, saying that there was nothing wrong with the son, that they had come off their tea break, that the service was for emergencies only and that painkillers from Tesco were what was required. The patient’s father complained that they would not transport his son and that one of the crew stated that she had had children and knew what pain was like. He complained that his son had had to get down three flights of stairs, that his wife took him to hospital and that the X-ray showed that he had a broken hip. It was recorded that the family would like to have their complaint investigated.[11]Mr Westrip was notified about the complaint. He appointed Mr Miller to carry out an investigation. The patient’s complaint was one of several that Mr Miller was investigating. At the time that he was investigating these complaints Mr Miller knew that the Claimant had issued a grievance, although he did not know its details. He did not know that the Claimant might have wanted to complain about his refusal of a request that the Claimant had made for training in July 2012, nor did Mr Turner know, the ET said, so far as they had been made aware, that the Claimant had made a complaint against him.[12]In the course of his investigations Mr Miller interviewed the Claimant, Ms Davison, the patient and his mother, their neighbour, the out of hours GP, two members of staff from the hospital, and Mr Robinson, who had taken a statement from Ms Davison. The patient’s complaints included allegations of inappropriate comments made by the ambulance crew. Among the complaints were that they had refused to get a stretcher or chairlift to help the patient, had not examined him, had told him it was their coffee break, that it was not an emergency visit, that ambulances were for emergencies only, that he was not in pain and nothing was broken, that they required him to get out of the house unaided even though he was having to hop, that they told him that his mum could get some pain relief from Tesco and that they had overheard a telephone conversation in which the GP was told that the patient could wait there and walk to the car. They complained that when he struggled to hop he was told by the blonde haired-attendant - that is, the Claimant - that she had had two kids and no gas and told them to hurry up.[13]The ET dealt with the further investigation of the Claimant’s grievance and the disciplinary investigation in paragraphs 87 and following of their Reasons. They recorded that Mr Miller decided that the complaint against the Claimant should be upheld. He reported that to Mr Church, who decided that there should be a disciplinary investigation against the Claimant and Ms Davison. A letter dated 30 November 2012 to the Claimant told her that that would happen. She was told of the allegations against her and that Mr Miller would be investigating. He told her that the investigation could lead to disciplinary action including dismissal. He also told her that it had been decided not to suspend her from full operational duties but that her duties had been restricted (in that she would be crewed with a paramedic or ECP during the course of the investigation). This meant she would not be allowed to go on visits with a similarly trained and qualified person (such as Ms Davison) but would have to have someone more senior with her. In practice she had usually had a paramedic or ECP as her crew member, usually Mr Parnham. This restriction on the Claimant’s duties is significant in the light of one of the reasons why the ET was later to hold that her dismissal had been unfair.[14]At paragraph 95 of their Reasons the ET said that Mr Miller had continued with his investigation and had interviewed Ms Davison in December. There was a delay in his being able to interview the Claimant, but he did that on 31 January 2013. On 12 April 2013 he produced a 48-page disciplinary investigation report with many appendices. The appendices were the copies of all of the interviews that he had carried out and the documents on which he relied. He decided that there was significant evidence to support each of the allegations against the Claimant. The report was passed to Mr Meads, and he decided that there should be a disciplinary hearing to consider allegations against the Claimant. He also decided that there should be a similar hearing against Ms Davison. He was the presenting officer for the disciplinary case against the Claimant at her hearing.[15]The Claimant was invited to her hearing by a letter dated 1 May 2013. The allegations against her were the same as those that had been the subject of the disciplinary investigation. The ET set those out at paragraph 101 of their Reasons. The Claimant was told that if they were proved, the allegations could lead to disciplinary action that might include dismissal. At paragraph 102 of their Reasons the ET recorded that at the date of the Claimant’s disciplinary hearing no outcome had been reached in respect of her grievance even though the grievance preceded the events that had given rise to the disciplinary hearing. The ET were extremely critical of the long delays in resolving the Claimant’s grievances.[16]The ET recorded that the disciplinary hearing was conducted by Mr Bailey, who was at the time an Interim Consultant Paramedic. On the morning of the hearing the Claimant submitted statements from Mr Parnham (a Supervisor at the station at which she worked) and from Ms Whitehead (an Emergency Care Practitioner for the Respondent). Both statements, said the ET, covered similar themes. Paragraphs 104 and 105 of the ET’s Reasons read as follows:
“104. Mr Parnham referred to [the Claimant] informing him that she had received a text message from a colleague advising her that Sue Davison had told her that she had been contacted by Alan Westrip regarding a statement she had written concerning the complaints brought against [the Claimant] and Sue Davison. She (the Claimant’s colleague) was under the impression that there had been some decision to allow Sue Davison to re-write her statement. [The Claimant] had approached Steve Heard, the [Duty Operations Manager] that night, expressing concern that there was coercion by Alan Westrip and that pressure was being applied to alter her statement and that in doing so she would be given a more lenient punishment. 105. The statement from Anna Whitehead referred to a discussion she had had with Ms Davison, in which she [Ms Davison] alleged that Alan Westrip had conveyed to Sue Davidson [sic] that it was in her best interests to state that [the Claimant] did indeed make comments in order to protect herself from being reprimanded. She expressed concern that Sue Davison’s statement must be a factual account of what happened and not swayed by Alan Westrip or anyone else.”
[17]At paragraph 106 the ET said this:
“106. The concerns being expressed by Mr Parnham and Ms Whitehead were serious, if true, that Ms Davison was having pressure put on her by Mr Westrip not to give a true account of events.”
[18]At paragraph 107 the ET set out some of the points that had been raised at the disciplinary hearing. These included the Claimant’s reference to her grievance against Mr Westrip. The ET said that Mr Bailey told the Claimant that he would look at elements of her grievance that were relevant to the disciplinary case but would not judge the grievance. The ET recorded that the Claimant disputed some of the remarks she was alleged to have made. She did accept that she had made a remark to the patient to “man up”. The ET recorded that the Claimant explained that she had wrongly assumed that Ms Davison was doing the assessment and paperwork. She explained that she had not understood that the patient had a suspected fracture but that the GP’s letter and explanation was that it was a groin hernia. In response to the allegation of bringing the Trust into disrepute, she apologised and said it was not her intention and that she had not purposefully put anyone in danger. The ET recorded a further apology from the Claimant and her acceptance that the patient had not been treated in an appropriate way in her care, and her statement that she understood that communication had been misinterpreted, that she had taken this on board and made every effort to change her working practice.[19]The ET recorded the outcome of the disciplinary hearing. The Claimant was summarily dismissed on grounds of gross misconduct. At paragraph 110 of their Reasons the ET summarised the dismissal letter dated 17 June 2013. Firstly, they recorded that Mr Bailey upheld all six allegations against the Claimant. They then considered the section of his letter dealing with the allegation that the Claimant’s actions had caused a fundamental breach of the implied term of mutual trust and confidence. He referred to the Claimant’s version of events. He described it as being significantly different from that of others directly involved (even if he removed the testimony of the patient’s father). He referred to the evidence of the crew partner. That described a different version of events that was more reflective of the family complaint than of her account to the panel. The ET recorded that Mr Bailey stated that he had considered a final warning but balanced that with the significant concern of the panel. This was that they considered her evidence to be inconsistent, differing greatly from that given by all members of the family and from that of her crewmate. The Claimant was then notified of her right of appeal.[20]The ET recorded in paragraph 111 their view that Ms Davison’s account of events was important, in leading Mr Bailey to reject the Claimant’s account of events in various respects and to consider that she had given inconsistent evidence. They then said this:
“111. … The Tribunal finds that Mr Bailey was seeking in his evidence to the Tribunal to downplay the significance of the importance he gave to Ms Davison’s evidence.”
[21]At paragraph 112 the ET criticised the dismissal letter, saying that, although it was long, what was notable was that there were matters that Mr Bailey did not refer to and which the ET found he had failed to take into account. Firstly, there was no analysis of the Claimant’s grievance. He did not explain why it had no relevance to the disciplinary hearing. He did not consider whether the disciplinary hearing should be adjourned until the grievance outcome had been reached, notwithstanding the allegations from Mr Whitehead and Mr Parnham which suggested that Mr Westrip had been seeking to influence Ms Davison’s statements in the disciplinary process. There was no assessment of the evidence of Mr Parnham and Ms Whitehead and the credibility of Ms Davison’s account of events. There was no reference to the Claimant’s length of service. There was no reference to her previous record. There was no reference to the fact that the Claimant had been continuing to work in the Trust as an EMT, albeit with the stipulation that she should have someone more senior than her as crew. That was relevant to the Claimant’s apologies at the disciplinary hearing for not having treated the patient in an appropriate manner and to her statements that she had taken on board what had taken place and making every effort to change her working practice. The ET also recorded that Mr Bailey accepted in answers to questions that he had not looked at the Claimant’s disciplinary record, nor asked for her personnel file.[22]It is not necessary for me to read from the dismissal letter. I accept Ms Crowther’s submission that there are five key findings in the dismissal letter that are not reflected in this analysis by the ET. “Clear” is perhaps not the best word to use in this context, as, as Ms Crowther accepted, the dismissal letter is not very clearly written. Nonetheless, it is possible to spell out of it these five findings. First of all, there was a finding that the Claimant’s assessment of the patient was inadequate. Secondly, there was a finding that the Claimant had misrepresented to the GP over the telephone that she had done an assessment of the patient. Thirdly, there was a finding that in that situation it was quite inappropriate for the Claimant to say to the family that the GP was happy with the course of action that the Claimant proposed. Fourthly, there was a finding that the Claimant was aware that the patient might have a hip fracture. Fifthly, there was a finding that if she had done what she should have done she would have realised that he had a hip fracture. Those findings were not contradicted by any of the evidence, and those findings do not in any way turn on any conflict or supposed conflict between the evidence about who had said what to the patient and his family as between Ms Davison and the Claimant.[23]I should also read a full extract from the letter of dismissal dealing with sanction, which is only partially quoted by the ET:
“Having found these allegations, on the balance of probability, to be proven then a consideration needs to be given to applying a sanction. The allegations proven are serious in nature relating to the care of the patient entrusted to the ambulance service and therefore yourself. The potential for harm was highlighted and is significantly below the expected standard of the work you should deliver as an Ambulance Technician. The allegations are sufficiently serious to be considered as gross misconduct and as such disciplinary action should be imposed. I have considered that there was variance in some of the evidence from the family but felt this was not materially different in the context of the overall patient care episode [I interpolate to say that the letter writer is saying there that the conflicts of evidence were not material in the context of the overall gravity of the incident]. Despite this mitigation the fact remains that you have failed to ensure the safety of your patients by not delivering an acceptable level of patient care that had the potential to cause damage or injury, ultimately resulting in failure to deliver an acceptable level of patient care which has the potential to put the Trust into disrepute. I considered the level of sanction to be applied, which due to the nature of the gross misconduct would need to be of the higher end as identified within the Trusts Disciplinary Policy (managing conduct and performance). I considered a final written warning to reflect the seriousness of the findings but balance this with a significant concern of the panel that we considered your evidence to be inconsistent; it differed greatly from that given by all members of the family and your crewmate. This questioned its reliability and thus the fundamental Trust [sic] between employer and employee. It was therefore felt that redeployment was not a suitable or a workable option. Therefore I feel that sanction of summary dismissal from the Trust’s employment on the grounds of gross misconduct is appropriate. …”
[24]The ET recorded that Ms Davison’s disciplinary hearing took place on 11 June 2013. The allegations against her were the same as the allegations against the Claimant, and Mr Bailey upheld all of those allegations, as he had with the Claimant. Ms Davison was not dismissed but was given a final written warning, and at paragraph 114 of their Reasons the ET summarised Mr Bailey’s reasons for considering that a lesser sanction was appropriate in the case of Ms Davison.[25]The ET then noted that the Claimant had appealed by a letter dated 20 June 2013 on the grounds that the outcome was harsh. The points made included:(1) the outcome would jeopardise her entire future prospects of gaining employment and would have financial implications for her as a single mother with two children;(2) she had a clean record;(3) since 2010 she had been suffering bullying, harassment and victimisation from a number of managers, and her grievance dated from June 2012, in which Mr Westrip was the main culprit, had not been dealt with in a timely way and had still not been decided;(4) she had written evidence in the form of statements that Mr Westrip coerced her crewmate into lying in her statement with the promise that she would be looked after; and(5) the Datix complaint she had made of bullying and verbally aggressive behaviour towards her by Mr Robinson and Ms Porter had not yet been dealt with.[26]The appeal was heard on 5 August 2013. At paragraph 121 of their Reasons the ET said that the Claimant had wanted witnesses to attend on her behalf but that her union representative, Mr Jones, had not arranged this. Mr Ashford, who conducted the appeal, had made efforts for the witnesses to be contacted but without success. He told the Claimant that they were looking only at whether the evidence considered by Mr Bailey had led to a fair decision and that as there had been no witnesses at the original hearing they could not hear any new evidence that day. The ET recorded that the Claimant had explained why she had wanted Ms Whitehead to be called, repeating the allegation that Ms Whitehead had said that Ms Davison had been told by Mr Westrip that if she would change her statement she would be looked after. In response Mr Ashford had said that that had been considered in the original case and asked what benefit she saw in calling this witness, to which the Claimant had replied that she guessed there was not a lot. In the light of that, Mr Ashford had decided that the witness would not be called.[27]The Claimant was represented by her union representative. Both sides presented their cases. At the end of the appeal the ET recorded that the Claimant had asked for leniency. She repeated that she had a clean record, that the event had caused distress for which she was truly sorry and that she would be happy for that to be put in writing to the patient. She said that on reflection it could have been done differently. Since the incident she had adjusted her practice. If the decision were overturned she would welcome the opportunity for further training and would comply with other sanctions. In a letter confirming the Claimant’s dismissal, Mr Ashford explained that because of the seriousness of the allegations summary dismissal was appropriate and that he had been satisfied that the original investigation and subsequent hearing had been done fairly.[28]At paragraph 126 the ET said that there had been no indication that Mr Ashford had considered the Claimant’s previous record, nor the impact on her and her family of being dismissed, nor her length of service, nor whether he had given any independent consideration whether Mr Westrip had improperly influenced the evidence given by Ms Davison. In answer to a question, they said, he had stated that he could not confidently say that he had looked at the Claimant’s disciplinary record. The ET said that in view of that and in view of the absence of any reference to it in his letter they found that he did not take any steps to examine the Claimant’s previous disciplinary record or her personnel file as a whole. Nor, they found, did he consider the relevance of the failure to have decided the Claimant’s grievance, including the allegation that she had suffered bullying and harassment, as she alleged, and whether that was mitigation for the events for which the Claimant had been dismissed.[29]In paragraphs 127 and following the ET, as I have already foreshadowed, were highly critical of the way in which Mr Maasz had investigated and determined the grievance. They found his explanations or excuses for the delays to be unconvincing, and they gave examples of that.[30]At paragraphs 147 to 151 the ET set out the law in relation to unfair dismissal. They uncontroversially summarised the effect of the decision of this Tribunal in British Home Stores Ltd v Burchell [1978] IRLR 379 . More controversially, in paragraph 151, they said this:
“151. In the case of Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854 (EAT) it was held that even if an employee has been dismissed for gross misconduct, it does not necessarily mean that dismissal must be within the range of reasonable responses. Mitigating factors must always be taken into account, such as long service, the consequences of dismissal and having a previously unblemished record.”
[31]Before I turn to the ET’s conclusions on the unfair dismissal claim, I should record some extracts from the ET’s resolution of the Claimant’s other complaints. At paragraph 180 they referred to issue 1.10(c) in the agreed list of issues. That concerned an allegation that the Respondent had allowed managers who were accused in the grievance to conduct the disciplinary investigation. The ET said (paragraph 181) “The Claimant’s allegations have little support in our findings of fact”. They explained that in more detail in the following paragraphs, and in paragraphs 187 to 189 they said this:
“187. We are satisfied, having in mind our findings of fact on issue 10(c), that managers accused in the grievance were not conducting the disciplinary investigation against the Claimant because of the Claimant’s grievance. Mr Miller conducted the investigation and he was not someone the Claimant was complaining against in her grievance. His refusal of the Claimant’s training request in July 2012 post dated the Claimant’s grievance, so was not referred to in it. 188. Insofar as Mr Turner and Mr Robinson had any involvement in the disciplinary investigation against the Claimant we do not detect any link between their involvement in the disciplinary investigation; and the Claimant’s complaints against them. Their involvement was minor and incidental to Mr Miller’s investigation. 189.

(c) ”

[32]At paragraph 197 the ET dealt with issue 1.10(h), which concerned an allegation that the managers who were identified in the disclosures at issue 1.8 (particularly Mr Westrip, Mr Miller and Mr Robinson) improperly influenced the disciplinary investigation in the ways alleged in issue 1.14(a), (b) and (c). At paragraphs 198 to 200 they said this:
“198. As described in our findings of fact above, Mr Robinson had little involvement in the disciplinary investigation; and Mr Miller was unaware of the details of the Claimant’s grievance, so the Tribunal did not find they improperly influenced the disciplinary investigation. 199. As regards Mr Westrip’s involvement, and the allegation that he had coached Ms Davison about the contents of her statement, this is a more difficult issue for us to resolve. Mr Westrip, in his witness statement, denied that he had coached her, as he might have been expected to do. Neither Ms Whitehead nor Ms Davison was called as a witness at this hearing. Mr Parnham did not deal with this issue in his witness statement and was not cross examined on it. In our findings of fact below, on the issue of contributory fault, we have found on the balance of probabilities and with the information provided to the Tribunal not being particularly decisive, that he did not coach Ms Davison in what she was to put in her statement, or offer favours if she did so. Had we had more evidence on this issue, and heard from Ms Whitehead and Ms Davison, it is possible that we would have taken a different view. 200. This allegation of the Claimant, therefore, fails.”
[33]At paragraph 202 the ET found that the reason or principal reason for the Claimant’s dismissal was conduct, not a protected disclosure. They set out their reasons for doing so in paragraph 203. They then went on to consider whether the Claimant’s dismissal was:
“205. … fair within the meaning of section 98(4) ERA [Employment Rights Act], with the burden of proof being neutral on this issue.”
[34]At paragraph 206 they said this:
“206. Did the procedures adopted by the Respondent, looking at the procedures as a whole, fall within the band of reasonable responses a reasonable employer might have adopted? We find and conclude that they did not, including for the following reasons.”
[35]At paragraph 213 and following they considered whether the sanction of dismissal lay within the band of reasonable responses and held that it did not. It is a notable omission from the ET’s Reasons that they do not anywhere make any findings on the first stage of the test in Burchell . In other words, they did not make a clear finding whether the employer had a reasonable belief in misconduct or indeed what the content of that reasonable belief might be.[36]I return to the two aspects of the reasoning on unfair dismissal that the ET expressly engaged in. As to procedure, at paragraph 207 the ET said that the Respondent was a large employer with what would be expected to be robust procedures and:
“207. … would reasonably be expected to have in mind the career threatening effects of a summary dismissal of an employee for gross misconduct.”
[37]The ET noted that there was a disciplinary investigation, a disciplinary hearing and an appeal. They said that those are the steps that would be expected of an employer and were in accordance with the ACAS Code. At paragraph 209 they referred to their findings of fact that the involvement of managers against whom the Claimant had made a grievance was minor, and they concluded that that did not adversely affect the fairness of the disciplinary process. They also concluded in paragraph 209 that the failure to allow the Claimant to call witnesses at her appeal hearing or question witnesses that did attend would not of itself have been such as to make the dismissal outside the band of reasonable responses. At paragraph 210 they said this:
“210. The concerns about whether Mr Westrip had improperly been coaching Ms Davison and of possible bias were serious concerns. Additionally, the Claimant brought evidence that suggested that Mr Westrip might have been seeking to influence the evidence given by Ms Davison about the Claimant. A reasonable employer would have made further enquiries about it. Mr Bailey accepted Ms Davison’s, not the Claimant’s account of events, without taking appropriate steps to satisfy himself whether Ms Whitehead’s statement was correct and whether improper influence had affected her statement; as described in paragraphs 110 and 111 above. For this reason alone the dismissal lay outside the band of reasonable responses a reasonable employer would have adopted.”
[38]At paragraph 211 they made a further criticism of the Respondent’s procedure, which was that both Mr Bailey and Mr Ashford had refused to make further enquiries about the Claimant’s grievance and assess its relevance to the disciplinary allegations against the Claimant and whether it needed to be concluded before the disciplinary hearing was concluded. They said this:
“211. … Having in mind that the Claimant’s grievance preceded the events that gave rise to the Claimant’s dismissal, it was a serious failing. Even by the stage of the outcome of the Claimant’s appeal, her grievance remained outstanding. A reasonable employer would not have taken such a dismissive attitude to the Claimant’s grievance, having in mind that she raised the issue both in the disciplinary hearing and in her grounds of appeal. The Respondent did not conduct as much investigation as was reasonable.”
[39]The ET, as I have already indicated, then turned to the question of sanction. They did not uphold one of the criticisms made by the Claimant of her dismissal, which was disparity between the sanction that was applied to her and to Ms Davison (see paragraph 214 of their Reasons). At paragraph 215 they said that some of the failings identified as procedural failings were also substantive failings. The examples they gave were the failure to investigate the allegation that Ms Davison had been influenced by Mr Westrip and the failure to make “proper enquiries” about the Claimant’s grievance. They also referred to the fact that training was part of her grievance and that:
“215. … Training was relevant to how she performed her job and the complaint against her related to how she had performed her job in the evening in question; even although Mr Bailey might then reasonably have concluded that whether or not she had been refused training did not excuse her poor patient care that evening. Part of the grievance was that she was being bullied by her managers. This was [a] potentially relevant mitigation, even if Mr Bailey may reasonably have concluded that it was insufficient mitigation.”
[40]At paragraph 216 the ET criticised the Respondent for failing to take “the kinds of steps referred to in the Brito-Babapulle case”. No steps had been taken either by Mr Bailey or by Mr Ashford to ask about the Claimant’s length of service or her record. No account had been taken of the fact that the Claimant had continued to do the same job apart from the restriction of requiring her to have a higher-level employee with her as a crew member. She had been performing her job without any significant issues for nearly ten months between the incident in question and her disciplinary hearing. That was relevant to whether she had learnt lessons from the incident and what risk there was of a similar incident in the future. It was also relevant to the allegation in the invitation to the disciplinary hearing that there had been a breach of the implied term of trust and confidence. If the Respondent had truly lost trust and confidence in the Claimant, it would be expected that they would not have allowed her to continue to do the same job for the best part of a year before making a decision to instantly dismiss her and at least would have considered the evidence of how she had been performing during that time. The Appeal[41]In her skeleton argument the Claimant referred to her grievance. She submits that it was a breach of the Respondent’s dignity at work policy for the Respondent’s employees who delayed in relation to her grievance to conduct the disciplinary procedure. She submits that the Respondent should have investigated her complaints more fully. She also submits that the Respondent did not assess Ms Davison’s credibility or investigate her failure in clinical care sufficiently or Mr Westrip’s undue influence throughout the disciplinary procedure. She refers to the fact that Ms Davison had previously had an allegation of misconduct against her. She submits that the Respondent treated her and Ms Davison inconsistently. They had both been found guilty of a failure of clinical care, yet Ms Davison had received a final warning, whereas the Claimant had been dismissed. She submits that Mr Bailey’s belief that she knew or suspected that the patient had a fractured leg was not based on reasonable grounds; she denied it strenuously. The Respondent did not take into account sufficiently the undue influence exerted by a senior officer, and it had never been considered whether there had been a genuine misdiagnosis. She also argued that Ms Davison had given a better outcome than she had, and that Ms Davidson’s outcome letter had been deliberately amended. She submitted that the dismissal had been predetermined. The Respondent had used the disciplinary procedure with “malicious intent”. The reputation of the Respondent, support for Mr Westrip and for Ms Davison had taken precedence over the Claimant’s legal rights.[42]In her oral submissions this morning the Claimant did not dispute that she had failed a patient, and she apologised for that. She also accepted that it had been obvious that the Claimant was in pain. She submitted that she had not been deliberately dishonest, but she accepted that the Respondent had found that she had been. Her position in her oral submissions was that had that conclusion been reached by a different independent team of investigators, she would have accepted it. Her case today was that she did not suspect that the patient had a fracture, but she did accept that she should have known that he in fact did have a fracture. She accepted in the course of her submissions that her grievance did not make her failings towards the patient any less serious. She submitted that the team who had investigated the disciplinary matter had been too closely linked with the grievance but it is clear from the Reasons of the ET that I have just summarised that the ET rightly rejected that as a potential reason why the dismissal was unfair. She also relied in her oral submissions on the argument that Ms Davison had been treated more leniently; again, this argument was rightly rejected by the ET in its Reasons as a potential reason why the dismissal was unfair.[43]The Claimant’s main point was that she felt strongly that the finding that she acted dishonestly was wrong, in part at least because it was made by managers who, she felt, were too closely involved with her grievance. As is plain from its findings, the ET disagreed. But the question for the ET was not whether the Respondent was right to find that the Claimant was dishonest, but whether a reasonable employer could have found that. As I have already indicated, there are no findings about this in the ET’s Decision at all.[44]Did the ET err in law? In order to decide whether the ET erred in law, I have to look again, quite closely, at the various reasons that were given by the ET for holding that the dismissal was unfair. I refer once more to the gap in the ET’s reasoning that is whether or not the Respondent had a reasonable belief on reasonable grounds in the Claimant’s misconduct. I turn first of all to the procedural points that the ET took into account in holding that the dismissal was procedurally unfair. The first point was that an employer would reasonably have in mind the career threatening outcome of summary dismissal for gross misconduct. This seems to me to be wholly irrelevant. The whole point of summary dismissal is that an employer is entitled to treat some types of conduct as so serious that the appropriate sanction is summary dismissal irrespective of an employee’s record and irrespective of the consequences for the employee of dismissal. An employer’s procedure does not need to have provisions setting out the obvious consequences of summary dismissal for every employee, because the consequences for every employee are very similar.[45]The next matter that was relied on by the ET was what they described as serious concerns resulting from the allegation that Mr Westrip had coached Ms Davison or tried to persuade her to change her evidence. The ET said that a reasonable employer would have made further enquiries into that allegation. Indeed, they went further: they said that for this reason alone the dismissal was outside the band of reasonable responses. The difficulty with this is that this criticism simply fails to engage with the relationship of Ms Davison’s evidence and any conflicts between her evidence and the evidence of the Claimant with the actual grounds of dismissal that are relied on in the letter of dismissal. For this to be a valid reason why the dismissal was unfair, the ET would have needed to explain why in the light of the actual findings made by the employer this conflict of evidence or any allegation that this witness had been coached was remotely relevant to the grounds of dismissal. The point here is that any conflicts between the evidence of Ms Davison and the Claimant simply do not engage with the key findings in the dismissal letter that I have already described. Those key findings do not depend on comments that were or were not made by the Claimant and/or Ms Davison to the patient and/or the family but rely instead on the matters that I have already described.[46]The next matter that the ET relied on was that there had been no enquiries about the content of the Claimant’s grievance in order to assess its relevance to the disciplinary allegations. The ET was well aware of the nature of the grievance, and in order for this to be a valid reason why the dismissal was unfair the ET would have needed to explain, given that the Respondent’s policy was for grievances to be dealt with separately from disciplinary matters unless there was a crossover, what link there is between the grievances and the disciplinary procedure. The ET would have needed to explain how a reasonable employer could have seen there to be any link between the two, or how a reasonable employer could possibly have considered that grievances could mitigate the serious conduct that is referred to in the dismissal letter.[47]The ET then turned to sanction, and it said that two of the procedural matters were also substantive matters: that is, the failure to investigate the allegation of witness coaching and the failure to investigate more fully the Claimant’s grievance. The first point in relation to both of those is that they were procedurally irrelevant and if they were procedurally irrelevant they are substantively irrelevant as well.[48]The next point that the ET relied on was a lack of training. In my judgment, this was a wholly irrelevant consideration, as is clear from the second part of the sentence in paragraph 215 after the ET mentioned training. They say:
“215. … even although Mr Bailey might then reasonably have concluded that whether or not she had been refused training did not excuse her poor patient care that evening. …”
[49]They then referred again to the fact that part of the grievance had been that the Claimant had been bullied by her managers. They said:
“215. … This was [a] potentially relevant mitigation, even if Mr Bailey may reasonably have concluded that it was insufficient mitigation.”
[50]Again, in my judgment, the fact, if it were a fact, or the allegation, that the Claimant had been bullied by her managers was wholly irrelevant to the incident for which she was dismissed.[51]The ET then turned to the decision in Brito-Babapulle . That was a case in which, as is clear from paragraph 9 of the decision of this Tribunal, the ET in its Reasons had said:
“9. On the facts decided by and known to the respondent at the time we take the view that this dismissal did fall within the range of reasonable responses. The respondent was entitled to find that the claimant’s actions amounted to gross misconduct. … Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses.”
[52]The then President, Langstaff J, said this about the ET’s reasoning in that case (paragraph 38):
“38. The logical jump from gross misconduct to the proposition that dismissal must then inevitably fall within the range of reasonable responses gives no room for considering whether, though the misconduct is gross and the dismissal almost inevitable, mitigating factors may be such that dismissal is not reasonable. …”
[53]At paragraph 40 he said this:
“40. It is not sufficient to point to the fact that the employer considered the mitigation and rejected it, largely upon the basis that the failure to observe the verbal notice and the letter undermined it, because a tribunal cannot abdicate its function to that of the employer. It is the tribunal’s task to assess whether the employer’s behaviour was reasonable or unreasonable having regard to the reason for dismissal. It is the whole of the circumstances that it must consider with regard to equity and the substantial merits of the case. But this general assessment necessarily includes a consideration of those matters that might mitigate. For that reason, we think that there was here an error of direction to itself by the tribunal.”
[54]The EAT decided to allow the appeal and remit the case to the ET. I consider that in paragraph 216 of their Reasons the ET misunderstood the effect of Brito-Babapulle . I accept Ms Crowther’s submission that that decision is not authority for the proposition that it is for the ET to look at the mitigating features that have not been identified by the Respondent and then to say that a dismissal is unfair. What the EAT is saying instead is that the ET must not jump from a finding that a dismissal has been for gross misconduct as a matter of logic to a finding that the dismissal is therefore fair. In many cases that will be the outcome, but there are cases, albeit a small number of cases, where if there is actual mitigation that could lead to the dismissal being unfair.[55]In this context, it seems to me that it is significant that when quoting from the dismissal letter the ET did not quote the whole of the passage in the dismissal letter that dealt with sanction. It is apparent from that letter that the Respondent carefully considered whether the gross misconduct that it had found in this case meant that dismissal was the appropriate sanction and had thought carefully about whether or not it would be appropriate to give the Claimant a final warning. What had tipped the balance and what the ET did not deal with was the Respondent’s conclusion that the Claimant had been dishonest and that this had destroyed the relationship of trust and confidence between the Respondent and the Claimant.[56]The ET’s reliance on the fact that the Claimant had been doing her former job during the period of her suspension, albeit under the restriction that I have described, is also, in my judgment, irrelevant to the question either whether dismissal was the appropriate sanction or to whether the Respondent was reasonably entitled to conclude that the relationship of trust and confidence had been breached. The whole point about the restriction under which the Respondent had permitted the Claimant to work was that it was indicative of a loss of trust and confidence, precisely because of the nature of the relationship between the person who was crewed with the Claimant before the disciplinary investigation and the restriction that was thereafter placed on her. What the ET appear to be saying is that an employer should dismiss straightaway rather than allowing the disciplinary procedure to take its course in circumstances where an employer has made a decision that with appropriate safeguards an employee can continue to work until the disciplinary process has been concluded. It seems to me that in that respect also the ET took into account irrelevant factors and failed to take into account relevant factors. Conclusion[57]For all those reasons, in my judgment, the ET erred in law in the respects that I have identified. In short, I accept the submissions of Ms Crowther that the ET substituted its view for that of the employer, that is misapplied the decision of this Tribunal in Brito-Babapulle and that it committed the other errors in relation to mitigation and sanction that I have described. As I have also noted, there is a crucial gap in the Reasons, which is whether the Respondent was entitled as a reasonable employer to come to the views expressed in the dismissal letter about the Claimant’s conduct. I shall hear further from the parties about what should flow from my decision, but I indicate at least a provisional view that the case will have to be remitted to the ET and that perhaps the most appropriate course will be for the same ET to hear submissions on the evidence already given in the light of the terms of this Judgment.