Gross misconduct

Case 1: The facts

Mr Small, an ambulance paramedic, was dismissed for gross misconduct in relation to his conduct on 12 July 2005, when he and his colleague attended an emergency call-out to a patient. He was dismissed for failure to assess, recognise and treat a seriously ill patient; failure to provide the appropriate level of care and bringing the trust into disrepute. Until this point, he had a good record. An employment tribunal found his dismissal unfair on procedural and substantive grounds and deducted 10% for contributory fault. The EAT upheld the finding of unfair dismissal, but allowed the Trust’s appeal on the level of contributory fault. The trust appealed again.

The ruling

The Court of Appeal upheld the appeal and sent the case to a new tribunal to decide afresh. Although the tribunal had cited the correct legal principles, it had incorrectly substituted its view for that of the employer. It had listened to the evidence and made its own fact findings about Small’s conduct, when instead it should have considered the reasonableness of the employer’s investigation and belief in his guilt. The tribunal’s own fact findings were only relevant at a later stage when deciding whether – if the dismissal was unfair – he should have his compensation reduced because he was guilty of contributory fault.