Appeal No.	 EAT/676/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
SIR GAVIN LAIRD CBE
MRS J M MATTHIAS

HEREFORD & WORCESTER 
AMBULANCE SERVICE NHS TRUST	APPELLANTS

MR P M O'ROURKE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR P B DEAN
(of Counsel)
Messrs Mills & Reeve
Solicitors
Midland House
132 Hagley Road
Edgbaston
Birmingham B16 9NN	

	MR JUSTICE LINDSAY (PRESIDENT):	This is a preliminary hearing of the appeal by Hereford & Worcester Ambulance Service NHS Trust in the matter of Mr P.M. O’Rourke against that Ambulance Service.  We do not need to set out the underlying facts at all for our immediate purpose save to say only that there was a hearing of two days in February 1999 at Hereford, under the chairmanship of Mr B. Lloyd, when the Employment Tribunal decided as follows:

“The unanimous decision of the Tribunal is that the applicant was unfairly dismissed.  All matters relating to remedy are adjourned for 28 days.”

1	We have a skeleton argument from Mr Dean, on behalf of the Ambulance Service, and we pick up two points in particular.  At their paragraph 27, the Tribunal working their way through the familiar Burchell test, said this:

“It is our finding that beyond the evidence that the applicant and Mr Sankey had failed to obtain certification of death by a medical practitioner, all more serious allegations were based on conjecture and assumption, and subjective interpretation of the rules of guidance.  We do not accept that the respondent had a genuine belief in serious conduct justifying dismissal.  The respondent’s investigation and the evidence on which it relied were insufficient to form any such belief.”

2	That first part “We do not accept that the Respondent had a genuine belief in serious conduct justifying dismissal” is a very serious allegation and the case here is made against a body which one should be able to expect to be a reasonable and responsible body, the Ambulance Service NHS Trust for Hereford and Worcester.  It is tantamount to saying that the whole structure upon which the dismissal process rested was based on an absence of bona fides on the part of the Ambulance Service and no reason is given for that at all and no evidence justifying it is identified by the Tribunal.  Whether it is, or is not, in fact justified as a well founded conclusion is one thing, but, even were it to be well founded, a party is entitled to be shown the reasons for the decision on such an important part of the case.  We bear in mind the general guidance given in Meek v City of Birmingham City District Council [1987] IRLR 250.  There may be an error both in the conclusion and in the failure to specify the reasons for it.  The only matter that seems to have been given as a reason for it, namely “the Respondent’s investigation and the evidence on which it relied were insufficient to form any such belief”, confuses the genuineness of a belief with the existence or not of reasonable grounds for that belief.  That seems to us to be a point that is worth going forward.  It is an arguable point of law with some prospect of success.

3	Also on page 18 of our papers, in paragraph 28, this is what is said:

“The respondent gave three months notice of the applicant’s dismissal from his paramedic post and, immediately following the dismissal, was prepared to offer the applicant a new contract of employment in a different role.  That was not consistent with a genuine belief in gross misconduct of the type alleged by the respondent.”

4	We see no necessary inconsistency between dismissing a man as a paramedic who, in this case, was therefore the senior of a crew of two in an ambulance and the person charged with particular duties as such, on the one hand, with offering to re-engage him at a lower level as a patient carer on the other.  A failure to observe scene of accident procedure is a serious failing to be laid at the door of a paramedic senior crew member but which might not have any real application to him in the lower status as a patient carer.

5	There are other allegations of errors of law in the skeleton that Mr Dean has put before us.  We do not think this is a case for picking and choosing between this point and that and allowing this to go forward and that not, and so on.  Having identified two points that seem to us to be arguable we think the better course is to let the whole appeal go forward to a full hearing.