And speaking of… no… I really can’t relate a chocolate skull to the following. I’m not magic, you know!

In the case of London Ambulance Service NHS Trust v Small [2009], the Court of Appeal determined whether an employment tribunal had wrongly substituted its own view of the facts for that of the employer when deciding an unfair dismissal claim.

Mr Small was a paramedic with 13 years' service and an unblemished record. Following a complaint from the daughter of an elderly patient about his treatment of her mother, the London Ambulance Service investigated and identified a string of serious concerns, including failing to take a proper history, failing to record that the patient was diabetic, failing to give pain relief, and failing to act on signs the patient was critically unwell during the journey to hospital.

At a disciplinary hearing where Mr Small was legally represented, the dismissing officer preferred the daughter's account over Mr Small's, and concluded that his failings were serious enough to justify dismissal, notwithstanding his long and previously unblemished record. His internal appeal was unsuccessful, until in due course he was dismissed for gross misconduct.

Mr Small then brought an unfair dismissal claim against London Ambulance Service, arguing that the decision to dismiss him fell outside the range of reasonable responses open to a reasonable employer.

The Employment Tribunal found that Mr Small had been unfairly dismissed. Rather than confining itself to whether the employer had reasonable grounds for its conclusions, the tribunal went further and made its own findings of fact about what had actually happened on the night in question, including deciding, on the balance of probabilities, that the daughter had not told Mr Small about her mother's diabetes. The tribunal also found the dismissal procedurally unfair due to a ten-week delay before Mr Small was interviewed, and assessed his contribution to his own dismissal at just 10%, without taking into account a series of damaging admissions he had made in cross-examination.

The Employment Appeal Tribunal dismissed the Trust's argument that the tribunal had improperly substituted its own view for the employer's, holding that the tribunal was entitled to make its own factual findings because the Trust had separately argued that Mr Small contributed to his dismissal through his conduct. The EAT also upheld the finding of procedural unfairness, but did allow the Trust's appeal on contribution, sending that issue back to the same tribunal with a clear steer that contribution should have been assessed at no less than 50%. The Trust then appealed further to the Court of Appeal on the question of liability.

This case shows employers and tribunals alike that, however legitimate it may be to make factual findings for the purposes of assessing an employee's contribution to their own dismissal, those findings must not be allowed to creep into the assessment of liability. Tribunals are not there to re-try the disciplinary case or decide what actually happened; their job is only to assess whether the employer's belief was genuinely and reasonably held. Employers facing tribunal claims should keep a close eye on whether a tribunal is reaching its own conclusions on disputed facts rather than scrutinising the reasonableness of the original decision, since this remains one of the most common pitfalls in misconduct dismissal cases.