Background:

The claimant worked for the respondent from November 2008 until his employment came to an end in April 2023. The claimant worked as a School Bus Driver.

The issue leading to the case arose on Friday 1st October. It involved a five year old child who was being carried in transport by the claimant from his School to home. There was CCTV on the bus. The child was sitting directly behind the driver having been placed into the seat by a teacher. It was the first day in which this child had got on the bus at 3pm having stayed in school for football. At 3.40 the school received a call from the father of the boy who was very upset as he had not returned home yet. He had been informed that the child had missed his stop and was at Strabane bus depot. The child had been returned safely shortly afterwards. It should be noted that the evidence put forward by the School was that the bus driver was expressly told about the child on the bus and that he was sitting behind him. The claimant disagreed with this. The evidence outlined that the claimant did not realise that the child was still on the bus when he had got to the depot.  The claimant was suspended on the grounds of a child/pupil being at risk of significant harm. A further issue arose about the claimant leaving his bus with the children all on board to talk to another driver and he had left the engine running.

There was contention about the suspension with the claimant being alarmed that he had been given the letter at home and out of working hours citing that it would have been more appropriate to provide it on Monday when he arrived for work. The claimant cited this as a breach of privacy yet the respondent stated it was normal practice and was done in the context of child safety and protection. Additionally, he disagreed with the allegation that he would not have seen the child had he not been alerted by another driver. The respondent disagreed with this saying that the suspension decision was not made until the Monday following a multi-disciplinary team meeting. There were other errors in the suspension letter such as referring to a meeting with the claimant on that day which had not taken place.

The suspension was followed by an investigation and disciplinary process. The investigation found, from the CCTV, that the claimant arrived at the depot and got off the bus to wash the vehicle. When he then parked the bus another driver asks, ‘have you checked your bus?’ which the claimant replied ‘yes, I have checked my bus, have you checked yours?’. It was following this that he then noticed the child on the bus. It was found as part of the investigation that as the child was seated behind the driver that it would have been very hard to miss had the claimant looked down the bus.

The disciplinary panel noted the claimant’s acceptance with the investigation but for the point that he only discovered the child after being alerted by another driver. This point was confirmed and acknowledged by the panel. The claimant stated that he had to leave the engine running on the bus to ensure the heating would work but this was not the case as had been explained in training to the claimant. The disciplinary panel found that the actions amounted to a breach of trust and the safety of all pupils was jeopardised. As a result, the claimant was dismissed for gross misconduct.

Outcome:

The claimant brought a claim citing unfair dismissal. The Tribunal outlined that when it came to the point of whether the conduct amounted to gross misconduct it was not for them to categorise the conduct but to ask whether the respondent’s categorisation fell within the band of possible determinations of a reasonable employer. The Tribunal, on that point, felt that it did considering the nature and context of the case. The Tribunal acknowledged that there were some errors and inconsistencies in terms of how the dismissal process was run but they were not of a nature or degree such as to undermine the reasonably conducted process considering its protracted nature. Accordingly, the claimant’s case was dismissed.

Practical Guidance for Employers:

This case demonstrates that the Tribunal will look at matters in the round both in terms of substance and process. There can be the concern from employers and those conducting disciplinary processes that any small issue may be fatal and mean that the claimant would be successful regardless of the actual nature of the conduct. The Tribunal acknowledges that there were some errors and inconsistencies in terms of how the process was run here but looking at in the round it was reasonable, and the determination was one which a reasonable employer was entitled to come to.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/