Mr M Townsend-Ryan v Cardiff City Transport Services Ltd: 1602418/2024
EMPLOYMENT TRIBUNALS
Case No 1602418/2024
Between
Mr M Townsend-RyanClaimantCardiff City Transport Services LtdRespondent
Before
Employment Judge E MacdonaldMr A Veck (instructed by Counsel) for claimantMr M Williams (instructed by Counsel) for respondentDate 8 July 2025
JUDGMENT
[1]The complaint of unfair dismissal is well-founded and a declaration is made to that effect.[2]The Respondent is ordered to pay to the Claimant the sum of £7,332.40, comprising:a. Basic award: £5,876b. Loss of statutory rights: £500c. Uplift for unreasonable failure to comply with a relevant provision of the ACAS Code of Practice on Disciplinary and Grievance Procedures, pursuant to s 207A Trade Union & Labour Relations (Consolidation) Act 1992, being 15% of the above sums: £956.40 Approved by: Employment Judge E Macdonald 8 July 2025
REASONS
[1]I begin by expressing my apologies to the parties for the delay in producing these Reasons; some of that delay was occasioned by ill-health.
The hearing
[2]By a Form ET1 presented on 14 June 2024 the Claimant, Mr Townsend-Ryan, brought a complaint of unfair dismissal. Both parties were ably represented by Counsel. It was common ground that the Claimant had been dismissed by the Respondent. The Issues were clarified at the start of the hearing as being:a. What was the reason for the dismissal?b. Was it a potentially fair reason? The Respondent’s case was that the reason was a reason related to conduct, and therefore a potentially fair reason. The Claimant accepted that the Respondent held a genuine belief in the misconduct complained of.c. Did the decision-maker have reasonable grounds for belief in the misconduct complained of?d. At the time the belief was formed, had the respondent carried out a reasonable investigation?e. Had the respondent otherwise acted in a procedurally fair manner?f. Was dismissal within the range of reasonable responses?[3]Mr Williams confirmed that the reason for dismissal relied upon by the Respondent was that set out in the dismissal letter, which I set out in more detail below.[4]I heard evidence from the Claimant himself; from Miss Rachael Hargreaves, the dismissing officer; and from Mr Craig Hampton-Smith, the appeal officer.[5]I was also provided with a hearing bundle of some 292 pages, and had the benefit of viewing CCTV footage and a selection of still images.
Law
[6]The Employment Rights Act 1996 provides insofar as is material as follows: 94 The right.(1) An employee has the right not to be unfairly dismissed by his employer.(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239). 98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, [. . .] (c) is that the employee was redundant [. . .] (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[7]The reason for the dismissal is the “set of facts known to the employer, or . . . beliefs held by him which cause him to dismiss”: Abernethy v Mott, Hay & Anderson [1974] IRLR 213 CA per Cairns LJ.[8]The inquiry under s 98(4) of the 1996 Act is governed by the test in British Home Stores Ltd v Burchell (Note) [1980] ICR 303. The Tribunal must be satisfied that the employer believed the employee was guilty of misconduct; that it had reasonable grounds to sustain that belief; and that prior to forming its belief it had carried out a reasonable investigation. The Tribunal must also consider whether dismissal (given the conduct found) was within the band of reasonable responses.[9]The Tribunal must not embark on an independent evaluation of the evidence for the purpose of seeing whether the conclusion drawn by the employer was, by an objective standard, a correct and justifiable decision; but may evaluate the evidence for the purpose of seeing whether the employer could reasonably have drawn the conclusion which the employer in fact drew: Burchell.[10]The Tribunal must not substitute its view for that of the employer, but must apply a “band of reasonable responses” approach: British Leyland UK v Swift [1981] IRLR 91, i.e. must ask whether the employer’s decision was one which a reasonable employer might have adopted.[11]The “band of reasonable responses” test applies at all stages of the inquiry: Foley v Post Office [2000] IRLR 827.[12]What constitutes gross misconduct is a mixed question of fact and law. Gross misconduct will involve either deliberate wrongdoing or gross negligence: Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09. The question is whether the negligent dereliction of duty (if that is the finding) is so grave and weighty as to amount to a justification for summary dismissal.[13]The Tribunal must focus on what the employer made of the evidence, based on the information before it, not substituting its own view of the appropriate sanction but applying the standards of the hypothetical reasonable employer in considering the range of options that were reasonably open to it: St Mungo’s Community Housing Association v Finnerty [2022] EAT 117.[14]There is an implied term in all employment contracts that neither party will, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence: Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606.[15]In the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation: Polkey v A E Dayton Services Ltd [1988] ICR 142 Hl[16]It is not necessary for an employer to extensively investigate every line of defence advanced by the employee: Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94.[17]The range of reasonable responses applies to the decision to dismiss and also to the investigation: Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23
Findings
[18]I made the following findings of fact on the balance of probabilities and having regard to the evidence in the round.[19]I set out the factual background first before moving to findings on the fairness of the dismissal.
Background
[20]The Respondent is a large organization employing some 573 individuals; it has an internal Human Resources department.[21]The Claimant was employed as a Bus Driver from 6 February 2017 through to his dismissal on 6 February 2024, prior to which he had a clean disciplinary record.[22]An incident occurred on 21 January 2024, and the facts of that incident were substantially agreed between the parties. The Claimant’s evidence was that he finished his passenger service work at approximately 11.30pm or 12pm. Upon finishing passenger service, the standard procedure was for vehicle checks to be completed inside and out, and for the bus to be re-fuelled upon arrival at the depot. “User checks”, which necessarily involved exiting the cab, would, as a matter of practice, be carried out with the engine on. That was the Claimant’s uncontroverted evidence, and I accepted it.[23]On returning to the depot on 21 January 2024 there was a queue of buses waiting to be refuelled, so the Claimant joined the queue. He put the handbrake on, left the engine running, and believed by that point that he had completed the “internal” checks. While he waited for the queue to move forward, he exited the cab of the vehicle and stood in the “saloon” area on the footplate – this was behind and to the side of the cab. He took his personal mobile phone from his pocket to check to see whether he had messages from his wife (who is disabled, and for whom he cares deeply). He thought (at the time) that he was allowed to do this; he had done it before and had not been told that it was unacceptable. The period of mobile phone use was around 36 seconds in total; this was confirmed by CCTV evidence. When the queue began to move, the Claimant immediately put his phone away and re-entered the cab.[24]After pulling up at the fuel pump, turning his engine off, and exiting the vehicle to complete external checks, the Claimant was challenged by a new supervisor, Rob Campbell, who asked if he had been using his mobile phone. He responded by saying “no, of course not” or words to that effect. I accept the Claimant’s explanation that this was a mis-understanding: the Claimant in the disciplinary proceedings which followed accepted that he had been using his phone, but maintained that he had not been doing what he thought he was prohibited from doing, namely using a phone in the cab, or, more precisely, whilst driving.[25]On 2 February 2024 the Claimant received a letter dated 1 February 2024 inviting him to a disciplinary hearing. The letter, a copy of which appeared in the hearing bundle, framed the allegation as “Serious breach of health and safety rules; on 21st January 2024, you were using your mobile phone whilst operating bus 130 upon return to the depot.”[26]The Claimant was warned that one possible outcome to the disciplinary hearing might be dismissal, and he was reminded of his statutory right to be accompanied. He was provided with a copy of the disciplinary procedure.[27]The disciplinary hearing was held on 6 February 2024; the disciplinary officer was Rachel Hargreaves. The Claimant maintained that he had not done anything wrong. He was asked, in the disciplinary hearing, about his understanding of permitted mobile phone usage: he said “you can’t handle a mobile device in the cab or use it.”[28]Following his response, he was asked whether he was aware of any Highway Code changes said to have taken place in March 2022. Ms Hargreaves then referred to what she must have believed were the changes: she said that “Leanne” had posted on an internal communications system on 22 December regarding mobile phone usage; she referred to the Traffic Commissioner giving the starting point for a “mobile phone offen[c]e in [a] commercial vehicle with no previous . . .”[29]The Claimant’s trade union representative opined, in the disciplinary hearing, that they needed to be “specific” in relation to the Traffic Commissioner, emphasizing that “[t]hat’s while in the cab.” Ms Hargreaves’ response was to ask “where that is, so we can consider the point.”[30]Ms Hargreaves then went on to emphasise that the Highway Code “change[d] in March 2022, the use of mobile phones . . . must not be done whilst the engine was on”, and pointed out that his engine was on.[31]Thereafter the language shifted somewhat, with the point being made by Ms Hargreaves that the Claimant was still “responsible” for the bus.[32]The hearing adjourned. When it reconvened Ms Hargreaves referred back to the charge against the Claimant as being “alleged misconduct which was a serious breach of health and safety rules; on the 21st January used your mobile phone on bus 130 return into the depot” (emphasis added).[33]Ms Hargreaves referred to the Traffic Commissioner guidance; she stated that using handheld mobile phones or handheld devices especially while driving PCV HGVs “is unacceptable and puts yourself and others at risk”. She noted what she saw as an “inability to understand any wrongdoing” and decided summarily to dismiss on the ground of gross misconduct.[34]The dismissal letter was dated 9 February 2024; I return to the contents of the dismissal letter below.[35]The Claimant was given the opportunity to appeal, and took it.[36]The appeal was heard on 21 February 2024 by Mr Craig Hampton-Stone; the Claimant was again assisted by his trade union representative Mr Paul O’Hara.[37]Mr O’Hara in the meeting referred to the Traffic Commissioner rules and the Highway Code and said, according to the note of the meeting: “[t]hose rules brought in not accurate. Rules all set (sic) whilst in the cab . . .”[38]This argument was not expressly considered by Mr Hampton-Stone.[39]The Respondent in its policies refers at a number of points to the use of mobile phone devices “whilst driving a Company vehicle.” It is clear that this is prohibited. There are exceptions – in particular, emergencies, or “if a call has to be made” in which case the vehicle must be securely parked, engine turned off, and the individual must leave the cab. But it is clear that the prohibitions in the Respondent’s policies was to use of mobile phones “whilst driving”. Findings on the fairness of the dismissal The reason for the dismissal[40]As to the reason for dismissal, I find as follows.[41]Ms Hargreaves in her written evidence referred to “a serious breach of health and safety rules arising from the Claimant’s use of a mobile phone while in control of a vehicle on 21 January 2024 . . . a driver remains responsible for their vehicle until it is fully parked, the engine is off, and the defect card has been completed. The Traffic Commissioner has clearly stated that the use of handheld devices by vocational licence holders, particularly in or around vehicles, is unacceptable and poses a risk to both the individual and others. The Claimant had received the December 2023 circular which clearly outlined that mobile phone use while operating a bus constituted gross misconduct.”[42]In her oral evidence, Ms Hargreaves emphasized the health and safety risk in the depot; the “legalities” with regards to how mobile phones, or handheld devices, should not be used in the vehicle; the Traffic Commissioner’s rules – Statutory Document 6, Annexe C, which she said required that mobile phones should not be used; the “main risk” being, she said, “visual distraction”; and the fact that the implications of an intervention by the Traffic Commission could be “disastrous for the business.”[43]Given the totality of Ms Hargreaves’ evidence, I conclude that the reason for the dismissal was Ms Hargreaves’ beliefs that a) a health and safety rule prohibiting the Claimant’s conduct had been breached; b) the Claimant’s conduct was either illegal, or in breach of the Highway Code, or the Traffic Commissioner’s rules (“the legalities”); c) intervention by the Traffic Commissioner could be disastrous for the business; d) being distracted could pose a risk.[44]I had no doubt that Ms Hargreaves’ beliefs were honestly held; and they clearly related to conduct, and hence amounted to a potentially fair reason for dismissal. I find that the dominant factor in the decision-making was Ms Hargreaves’ belief in relation to the “legalities”, as she put it – in effect, her belief that a rule or rules had been breached.[45]I note that the disciplinary charge was framed in terms of using a mobile phone, rather than leaving the cab. Reasonable grounds[46]I reminded myself of the need not to substitute my own view for that of the employer, but to consider whether the decision-maker, Ms Hargreaves, held the beliefs above on reasonable grounds; and reminded myself again that the test at all stages is the “band of reasonable responses”.[47]I considered it appropriate to consider each element of the reason for the dismissal separately.[48]First, the belief that a health and safety rule had been breached. I do not accept that there were reasonable grounds for this belief. Ms Hargreaves’ evidence was that “mobile phone use while in control of a vehicle is strictly prohibited”, and that this rule was reinforced in December 2023 (a copy of the circular appearing in the bundle). That, however, is not what the circular (dated December 2023) said. The circular said that mobile phones are “not to be used, or even held, by drivers whilst they are driving vehicles . . [t]o even hold [a] mobile phone whilst driving is a legal offence.” (emphasis added). The same point applies to Ms Hargreaves’ written evidence, in which she said at Paragraph 18 that the December 2023 circular said that “mobile phone use while operating a bus constitutes gross misconduct.” The December 2023 circular did not say that, and there were no reasonable grounds for concluding that it did.[49]It was not reasonably open to Ms Hargreaves to conclude that the Claimant had been driving at the material time.[50]I deal at this point with an issue raised by Mr Williams in closing submissions, which is the effect of DPP v Barreto [2019] EWHC 2024 (Admin). That case is authority for the proposition that the legislation then in force does not prohibit all use of a mobile phone while driving; it prohibits driving whilst using a mobile phone or other device for calls and other interactive communications. Mr Williams observed, and I accepted, that the regulations then changed to cover the lacuna which Barreto identified.[51]I was also referred to the Road Vehicles (Construction and Use) Regulations 1986 which provide insofar as is material that 110.—(1) No person shall drive a motor vehicle on a road if he is using—(a) a hand-held mobile telephone; or(b) a hand-held device of a kind specified in paragraph (4). [. . .][52]Mr Williams did not press the suggestion that the Claimant was in breach of the Regulations at the material time, but set out the Respondent’s case as being that the Claimant was “caught by the company rules [and] was operating a company vehicle.”[53]Second, and in light of the above, I turn to Ms Hargreaves’ belief that the Claimant’s conduct was either illegal, or in breach of the Highway Code, or the Traffic Commissioner’s rules. I do not accept that there were reasonable grounds for this belief. In particular, there was no evidence that Ms Hargreaves had reviewed the Highway Code, or indeed the Traffic Commissioners’ rules, although she did suggest in evidence that she had looked at the Guidance. But in any event, neither the Highway Code, nor the rules, nor the Guidance, provided reasonable grounds for concluding that the Claimant’s conduct was illegal, or in breach of the Code, or in breach of the rules.[54]No reasonable employer would have concluded, on the information available, that either the internal policies or the external rules sought to regulate mobile phone use whilst not actually driving, i.e. behind the wheel. I find that “driving” in this context clearly refers to the process of driving, rather than a broader concept of being in charge of a vehicle, or “responsible” for a vehicle.[55]Third, the belief that intervention by the Traffic Commissioner could be disastrous for the business. I accept that Ms Hargreaves had reasonable grounds for believing this; but absent reasonable grounds to hold that there had been a breach of the Traffic Commissioner’s rules and/or guidance, there was not reasonable grounds for believing that this was a likely result of the Claimant’s conduct.[56]Fourth, Ms Hargreaves’ belief that being distracted could pose a risk. There were reasonable grounds for believing that being distracted could in principle pose a risk – for example, if driving a vehicle – but, given the CCTV evidence, I do not accept that there were reasonable grounds for believing that the Claimant’s conduct in this case posed a risk. There were no grounds for believing that the Claimant was unaware of his surroundings; quite the opposite, in that the CCTV footage showed the Claimant returning to his cab promptly once the queue began to move. Further, because the relevant vehicle checks were carried out – as I find – as a matter of routine with the engine running, the driver would necessarily be out of the cab and/or distracted whilst completing those checks. There were no reasonable grounds for concluding that checking a mobile phone whilst inside a static vehicle posed any greater risk than conducting internal or external vehicle checks in otherwise identical circumstances. Reasonable investigation[57]I again remind myself of the need not to substitute my own view for that of the employer, and of the requirement instead to consider whether the investigation fell within the band of reasonable responses.[58]The investigation fell short against this standard. In particular, the original disciplinary charge referred to “[s]erious breach of health and safety rules . . .”; reference was made throughout the disciplinary proceedings to the Highway Code, and to the Traffic Commissioner’s guidance and rules; and the accuracy of the respondent’s representation of those rules had been expressly challenged by Mr O’Hara during the appeal process.[59]Any reasonable employer would have taken steps to ensure that the documents relied on were expressly considered. This was either not done (in relation to the Highway Code) or not done with reasonable care (applying, again, the band of reasonable responses: any reasonable employer would have checked and expressly cited the rule said to have been breached).[60]Further, given the central importance of the question whether health and safety rules had in fact been breached, I conclude that any reasonable employer would have revisited that question when it was expressly put in issue by Mr O’Hara (both in the disciplinary hearing, referring to the need to be “specific”; and on appeal, saying “[t]hose rules brought in not accurate. Rules all set (sic) whilst in the cab . . .”). Any reasonable employer would have taken steps to verify whether this challenge to the allegations was well- founded. This, I find, was not done.[61]I observe that the failure to conduct a reasonable investigation (i.e. within the range of reasonable responses) in this case, on balance, had a direct impact on whether the decision-maker had reasonable grounds for belief in the misconduct alleged. Whether the respondent otherwise acted in a procedurally fair manner[62]The Claimant had not been given adequate warning that his conduct might result in dismissal, for the simple reason that the Respondent’s policies did not contain that warning.[63]The Claimant’s remorse, or lack thereof, albeit that it was taken into account by both Ms Hargreaves and Mr Hampton-Stone, could not have been taken by any reasonable employer as an aggravating factor in these circumstances, again for the reasons set out above.[64]The issues identified above were not cured on appeal: although Mr Hampton-Stone noted that the Handbook said that “the use of mobile phones whilst driving is prohibited”, he did not explore whether the Respondent’s characterisation of the rules was incorrect. I did not accept Mr Hampton-Stone’s assertion that a blanket prohibition on mobile phone use inside a vehicle (stationary or otherwise) was communicated orally in December 2023 despite not being evidenced anywhere in the documentation, nor did I accept his assertion that this was common knowledge. Whether dismissal within the range of reasonable responses[65]For completeness, I deal with the following point expressly raised by Mr Williams in closing. It was put to the Claimant that two employees in comparable circumstances had been disciplined for mobile phone use. Mr Williams suggested that, in terms, the Claimant would have known – as a result – that the Respondent operated a strict policy of dismissing employees for mobile phone use, or that there was strict enforcement of a “no mobile phone” rule.[66]The claimant’s state of knowledge is potentially relevant insofar as it bears on the reasonableness of the decision to dismiss: where the employee knows that their conduct is (properly) likely to result in dismissal, that is a factor relevant both to culpability and to whether the employee has (in effect) already been warned of the potential consequences of the conduct in question.[67]The first employee, who went on to receive a final written warning, had been charged with “. . . wearing ear buds whilst driving [the] bus upon return to the depot.”[68]The second employee, who went on to be dismissed, had been charged as follows: “. . . whilst operating a bus . . . in service, you used a mobile phone.” The Claimant’s evidence, which I accepted, was that the individual in question had been in service and operating a bus with passengers on; there was, he said, a material difference between his own case and the second employee’s case, which involved being on public roads, carrying passengers, and in live traffic.[69]It was suggested to the Claimant that those two employees had been disciplined or dismissed in a matter of weeks prior for doing precisely what he, the Claimant, had himself been doing. The Claimant considered that the other employee’s wrongdoing was “in the operational handbook” and “both their offences are gross misconduct, mine was not.” I agree that the Claimant and the two employees referred to above were in materially different circumstances; the treatment of the two employees referred to above did not give rise to knowledge, on the Claimant’s part, that he would be dismissed for his actions.[70]I do not accept that the treatment of the two employees in question is evidence of a blanket prohibition on mobile phone use, strictly applied so as to result in dismissal.[71]I reminded myself of the wording of s 98(4) Employment Rights Act 1996: S98(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[72]In this case, the decision to dismiss, based on beliefs which lacked reasonable grounds, and following an investigation which fell outside the range of reasonable responses, itself fell outside the band of reasonable responses. Applying the “band of reasonable responses”, the Respondent acted unreasonably in treating those beliefs as sufficient reason for dismissing the Claimant, and the dismissal was accordingly unfair. Polkey[73]It is convenient to consider Polkey at this stage. That requires me to consider the chance that there would have been a fair dismissal if the dismissal had not been procedurally fair. In this case, it would not be appropriate to apply a reduction for Polkey: there was no basis for me to find that the Claimant would have been dismissed in any event had a fair procedure been followed, and I found that had a fair procedure been followed the Claimant would not have been dismissed.
Remedy
[74]I reminded myself of s 207A Trade Union and Labour Relations (Consolidation) Act 1992 which provides insofar as is material that (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%[75]This was a case to which the ACAS Code of Practice on Disciplinary and Grievance Procedures applied. I considered that the Respondent had failed to comply with the Code in relation to the matter, in particular Paragraph 4 (investigations). I considered that this failure was unreasonable. I considered it just and equitable to increase the award made to the employee by 15%.[76]I considered that an award of £500 in respect of loss of statutory rights was appropriate.[77]Counsel for the parties helpfully agreed the figures for the basic award: £5,876.[78]There was no claim for a compensatory award, the Claimant having fully mitigated his losses.[79]I conclude by recording my thanks to Mr Veck and Mr Williams who presented their respective parties’ cases with clarity and concision; I am grateful to both for their assistance. Approved by: