The claimant was employed as a bus driver for the respondent which is a major London bus company with garages and routes in and around London. The case arose out of an incident in November 2020. The claimant submitted a Vehicle Incident Report outlining an incident that took place. The incident related to another bus in a depot which the claimant stated had to move. He stated that the driver of that bus was aggressively shouting and that he appeared at the front door abusing him. This led to a physical altercation.

The other driver was from Sullivan Buses. They reviewed the CCTV and they found that their driver had approached the other bus but when he tried to enter the bus he was physically assaulted by the claimant. They stated that their driver had been punched to the head and fell to the ground. As a result, the claimant was suspended. The investigation meeting had been rescheduled once to allow the claimant to get a Union representative. The claimant’s representative sought to have the second meeting postponed on the grounds of justice as he wanted to view the CCTV footage and attend but could not attend on the date given. This, in an email to the claimant, was refused by the respondent. The claimant stated his discontent at continuing without a Union representative or colleague present. The claimant produced a statement stating that he would not be answering questions without a representative as it could prejudice his defence. That being said, he did complain about not having viewed the CCTV in question before being asked any questions. It was only on his protest that he was allowed to see the CCTV.

In light of the failure to answer questions the decision was made to escalate it to a formal disciplinary hearing. This was on the basis of failing to adhere to company procedures in relation to exiting the vehicle as well as the physical altercation with the other driver. The claimant put his view across that it was the other driver who was being aggressive. The CCTV did show the claimant pushing the other driver off his bus and punching the driver. However, it should be noted that the other driver did approach his bus and was seen putting his right hand into his jacket pocket. The claimant stated that he feared for his safety at this point. Following representations, the decision was made that the claimant had committed gross misconduct. It was found that the claimant had put himself ‘into the situation’. It was further found that the claimant’s conduct was disproportionate and the level of violence used was unnecessary.

The claimant brought a claim for unfair dismissal. The first aspect was that it was an automatically unfair dismissal on the grounds of it being related to health and safety. However, the Tribunal found that health and safety was not the principal reason for the dismissal. On unfair dismissal generally, it was found that the investigation was flawed for a number of reasons. The first was that the CCTV footage was not provided to the claimant. The second was that an important statement was not provided as part of the investigation. The third was that statements were not requested from the others involved, most importantly the other bus driver. The fourth was that no evidence was ever sought of the alleged hospitalisation of the other bus driver. It was further found that the disciplinary meeting was also flawed in that it did not correct the issues with the investigatory meeting. Finally, the flaws were not rectified in the internal appeal. As a result, the dismissal was found to be unfair. That being said, compensation was reduced to 20% based upon the conduct of the claimant.

Practical Lessons

This case, yet again, demonstrates the importance of ensuring that the process is fulsome and proper in disciplinary matters. It is interesting that the Tribunal noted that the disciplinary meeting and internal appeal did not rectify the original flaws. This demonstrates the extent to which original flaws are not fatal and they can be rectified. This should be part of the examination when a matter is escalated to a disciplinary meeting or an appeal is lodged. The ‘fresh set of eyes’ should not only examine the substantive recommendations or decisions but should also look at the procedure adopted and evidence gathered.

https://www.gov.uk/employment-tribunal-decisions/mr-j-taylor-v-metroline-travel-ltd-3303137-slash-2021