London Ambulance Service NHS Trust v Small: CA 17 Mar 2009

The trust appealed against a decision that it had unfairly dismissed an ambulance paramedic after a complaint of his behaviour on a call out, saying that the ET had substituted its own assessment for that of the disciplinary panel of the Trust.
Held: The matter was remitted for a new hearing. Despite acknowledging the need to avoid imposing its own judgment, the ET had done just that: ‘the ET should have focused its fact finding on the Trust’s conduct of Mr Small’s dismissal. Instead, it concentrated on the conduct of Mr Small and it then used findings of fact in order to substitute its views for the grounds on which the Trust actually formed its belief and acted when it took the decision to dismiss. The ET should only have used its findings about the conduct of Mr Small on the separate issue of whether there was contributory fault on his part.’
Mummery observed, without laying down any fixed rule, that it would often be helpful for a tribunal when looking at questions of fairness, contributory fault, Polkey and so forth, to set out their relevant findings of fact separately with respect to each element, and ‘It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question- whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.’

Mummery LJ
[2009] EWCA Civ 220, [2009] IRLR 563
England and Wales
CitedMorgan v Electrolux Ltd CA 1991
Mrs Morgan, was suspected by her employer of overstating her work to boost her piece-work earnings. She was asked to explain the discrepancies found. Her explanations were not accepted and she was dismissed. The Industrial Tribunal found the . .

Cited by:
CitedKnight v Treherne Care and Consultancy Ltd EAT 15-Apr-2009
The Employment Tribunal erred when it found the employee was not unfairly dismissed. There was no disciplinary hearing. In the light of London Ambulance Service NHS Trust v Small [2009] . .
CitedPunch Pub Company Ltd v O’Neill EAT 23-Jul-2010
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .

Lists of cited by and citing cases may be incomplete.


Updated: 11 November 2021; Ref: scu.321827