Mr S Kaddu v London United Busways Ltd: 2205243/2018
EMPLOYMENT TRIBUNALS
Case No 2205243/2018
Between
Mr S KadduClaimantLondon United Busways LtdRespondent
Before
Employment Judge Mr N DeolMr D Kalazi (instructed by Representative) for claimantMr E Nuttman (instructed by Solicitor) for respondentDate 16 September 2020
JUDGMENT
[1]The Claimant’s unfair dismissal claim was presented within time and will proceed to a full merits hearing to be considered by an
REASONS
[1]The Claimant is pursuing a claim for unfair dismissal. His claims for harassment and discrimination on the grounds of race/age, holiday pay and for contractual payments are all dismissed upon withdrawal.[2]The only issue at this Preliminary Hearing is whether the Claimant’s unfair dismissal claim was pursued within the statutory time limit of 3 months.
Facts
[3]The Claimant was dismissed from employment on 6 June 2018, although at this hearing a dispute remains as to whether he was dismissed with notice or summarily. The Claimant gave evidence on this issue with the Respondent relying on the written correspondence to the Claimant and the pleadings rather than any live witness evidence. For the reasons set out below, the Claimant’s evidence is preferred – he was dismissed on 6 June 2018 with the 12 weeks’ of statutory notice that he was entitled to.[4]The Claimant accepted that when he was invited to the disciplinary hearing on 6 June 2018 he had been warned of the risk of termination. At the end of this disciplinary hearing his understanding was that he would be dismissed but was entitled to 12 weeks’ notice, his statutory entitlement.[5]The Claimant was cross examined as to what his obligations were to the Respondent after 6 June 2018. His response was clear; that he didn’t need to come to work during his notice period but that he nevertheless believed that he had been dismissed with notice. The fact that he had been paid his outstanding notice pay on or around 20 June 2018 did not change his view or understanding that he was entitled to his notice period of 12 weeks.[6]The Respondent referred to the ET1 Claim Form in which the Claimant indicated that he has been dismissed on 6 June 2018 and that he had not been dismissed with notice. It was suggested that this was a concession from the Claimant that he had been dismissed on 6 June 2018, a suggestion that that the Claimant roundly and convincingly rejected. The Claimant could have been clearer, that he believed that he was entitled to notice but not required to work it, but it was unlikely that he was anticipating a dispute on a limitation issue or that he fully understood the significance of this detail.[7]The Respondent relied upon the letter of dismissal of 6 June 2018 which said that: “my decision is to statutory dismiss you from the employ of London United Busways. Statutory dismissal means that you are entitled to notification under your contract of employment. All monies due to you will be paid by cheque of Friday 15th June 2018.” (emphasis added)[8]The appeal letter confirms the decision to dismiss – “at the end of the hearing it was decided to uphold the decision to statutorily dismiss you. The dismissal is final.”[9]The Respondent’s representative suggests that the reference to statutory dismissal was unfortunate and what it had intended was to dismiss with effect from 6 June 2018 and pay out the Claimant’s notice period. It argued that any doubt about this would have been resolved at the appeal stage, where the dismissal was confirmed, and the outstanding notice pay was paid to the Claimant. There was no evidence from the Respondent to support this argument, other than the correspondence referred to above.[10]Having considered the evidence presented the Tribunal accepts that the Claimant had not been dismissed with effect from 6 June 2018. That date was the date on which the Claimant was notified of his dismissal that would take effect after his notice period, which was the 12 weeks of statutory notice that he was entitled to.[11]In support of this view:(i) the Respondent referred to “statutory” dismissal in both letters and defines this as “notification under your contract of employment” in the first letter yet offered no evidence as to what that may mean if it wasn’t a reference to statutory notice.(ii) the Respondent’s letters do not specifically spell out what the EDT is, nor make refer to a payment “in lieu” of notice.(iii) the Respondent adduced no evidence about the Claimant’s dismissal other than the termination letter and appeal outcome letter.(iv) there is no inconsistency with being paid notice in advance for a notice period that has yet to run its course.(v) the Claimant’s own explanation that although he wasn’t required to perform any duties he was still employed throughout.[12]The Respondent suggested that the Claimant’s argument that he was dismissed with statutory notice was one advanced by the Claimant only after receiving legal advice. The Claimant convincingly dismissed this argument in his evidence.[13]On this basis the Claimant’s effective date of termination was 12 weeks from 6 June 2018, which is 30th August 2018.[14]The Respondent’s case at its best was that the Claim was submitted on 11 October 2018, the date on which the claim was eventually accepted by the Employment Tribunal, or in the Respondent’s words, the defect in the original claim was rectified. Based on this the Claimant’s claim for unfair dismissal was presented within the statutory time limit.[15]Given the argument in this preliminary hearing it may also be useful to set out a short summary of the Claimant’s interaction with ACAS. The Claimant contacted ACAS and obtained a ACAS early conciliation certificate (Reference Number R271781/18/23) against Shepherds Bush Garage/Well Road Garage. The notification date was recorded as 19 June 2019 and the certificate date was 20 June 2018.[16]The Claimant was contacted by ACAS to advise him that the name of the Respondent was wrong. The Claimant corrected that name. On 4th July ACAS sent the Claimant another ACAS certificate and the Claimant submitted his claim the following day, albeit with the original ACAS certificate number.[17]On 19th July 2018 a further certificate was issued with the correct name for the Respondent but without the registered address. The Claimant did not notify the Employment Tribunal of this new certificate or update his claim accordingly.[18]There was no evidence from the Respondent as to whether any contact from ACAS was received at this time.[19]The Claimant subsequently submitted his claim on 5 July 2018. On 26 September 2018 the claim was rejected by the Employment Tribunal given the discrepancy between the name on the EC certificate and the Claim Form.[20]On 28 September the Claimant contacted ACAS again. A further ACAS conciliation certificate was issued against London Busways Limited on the same day.[21]On 11 October 2018 the Tribunal claim was accepted after reconsideration given that “the defect of absence of match between the name of the Respondent on the ACAS certificate on the ET1 having been remedied” but “without prejudice to arguments on whether the claim is out of time.”
The Law
[22]The focus of the argument on the law at this preliminary hearing assumed that the claim was out of time.[23]In assessing whether a claim is out of time the first step is to establish the effective date of termination and the date of the claim. The effective date of termination (EDT) is:(i) If either the employer or employee gives notice to terminate the employment, the date on which the notice expires (section 97(1)(a), ERA 1996).(ii) If the employment terminates summarily (that is, without notice), the date on which that termination takes effect (section 97(1)(b), ERA 1996).[24]Where notice is given, the EDT is the date on which the notice expires (section 97(1)(a), ERA 1996). The Respondent makes much of the argument that if there was some ambiguity as to whether the Claimant had been dismissed with notice, that would have been resolved when payment of outstanding notice pay was made at or around the time of the Claimant’s appeal hearing.[25]In Secretary of State for Employment v Staffordshire County Council [1989] IRLR 117 the Court of Appeal held that, where the notice period had been shortened at the behest of the employer, this did not bring forward the EDT; the employer had simply waived the obligation for the employee to present himself for work. In TBA Industrial Products Ltd v Morland [1982] ICR 686 the Court of Appeal held that an agreement to leave early (at the behest of the employee) did not bring forward the EDT but was merely a waiver of the employee's obligation to work out their notice.[26]In Palfrey v Transco plc [2004] IRLR 916, a case in which the EDT was held to have been brought forward, following the employee's request to leave early. The EAT had regard to the Court of Appeal's decision in Fitzgerald v University of Kent at Canterbury [2004] EWCA Civ 143 and held that it was necessary to look, in a common-sense way, at what had happened between the parties over time and decide whether there had been an agreed variation of the original notice which brought forward the EDT.[27]The Court of Appeal in Fitzgerald held that the parties could not agree an EDT retrospectively (in Fitzgerald the parties agreed that after employment had terminated on 2 March, the employee would be treated as having accepted retirement from 28 February).[28]Section 111(2) of the Employment Rights Act 1996 provides that a Tribunal “shall not consider” an unfair dismissal claim unless it is presented in time. A Tribunal may only extend time for presenting a claim where it is satisfied:(a) it was not “reasonably practicable” for the claim to be presented in time.(b) the claim was nevertheless presented within such further period as the Tribunal considers reasonable.[29]Time limits should be strictly enforced, and the exercise of discretion should be the exception, and not the rule. (Bexley Community Centre (t/a Leisure Link) v Robertson).[30]Mere ignorance of the right to bring a claim, or the time limit or a procedure for making a claim, will not satisfy the reasonable practicability test. The Tribunal will need to be satisfied that the Claimant’s ignorance of the relevant time limit was reasonable. (Walls Meat Company Ltd v Khan 1979 ICR 52). A Claimant’s ignorance will not be reasonable if he ought reasonably to have made enquiries about how to bring a Tribunal claim before the relevant time limit expired.[31]In Porter v Bandridge Ltd (1978) ICR 943 it was held that even though the Claimant did not in fact know of their right to bring a claim, they ought to have known of it and it had therefore been reasonably practicable for a claim to be submitted in time. The Respondent also referred to the EAT decision in Reed In Partnership Ltd v Fraine UKEAT/0520/10.[32]The Respondent says that the current hearing was not a reconsideration of the Tribunal’s decision of 26 September 2019. Therefore, it was not open to the Employment Tribunal to say that this is a minor error. This Tribunal was, it argued, stuck with the position that the Claimant’s claim had previously been rejected by the Employment Tribunal and only accepted once the defect had been rectified, with effect from 11 October 2018.[33]There was nevertheless a useful summary of the strict requirements placed on the Claimant to provide certain “prescribed” information to ACAS before a claim could be instituted properly and what should happen where that prescribed information was incorrect, in this case a mismatch between the name of the Respondent. There was less focus on the following authorities, presumably because the Respondent considered that this Tribunal was not seized with this issue. They are nevertheless set out given their relevance to the alternative conclusions that have been reached below.[34]In Mist v Derby Community Health Services NHS Trust UKEAT/0170/15, the EAT observed, albeit in obiter comments, that a discrepancy between the name of a prospective respondent given on an EC certificate and the name given on an ET1 should not ordinarily prevent the tribunal from accepting the claim.[35]In Giny v SNA Transport Limited UKEAT/0317/16, the EAT held that an employment tribunal had no jurisdiction to allow a claim against a limited company to proceed where the prospective respondent had wrongly been identified on the EC certificate as a named individual (the sole director). The tribunal had been entitled to conclude that the discrepancy was not minor.[36]However, in Chard v Trowbridge Office Cleaning Services Ltd UKEAT/0254/16, a differently constituted EAT reached the opposite conclusion on essentially the same facts. The EC certificate named the controlling shareholder and managing director of the respondent, rather than the limited company which employed the claimant. While the EAT agreed with the analysis in Giny that determining whether an error is "minor" should be one of fact and judgement for the tribunal, it found that it would not have been in the interests of justice to reject the claim. The EAT emphasised the importance of the overriding objective when considering issues of this kind; in the employment tribunal, this includes avoiding unnecessary formality and seeking flexibility in the proceedings.[37]In the case of Savage v JC 1991 LLP T/A John Campbell, Messengers at Arms and Sheriff Officers and others UKEATS/0002/17 a difference in name was overlooked by the tribunal. Rule 12(2A) was not explicitly considered in that case but the EAT adopted a forgiving interpretation to a disparity between the name of the respondent on the EC certificate and the name of the respondent on the ET1. The EAT found that an employment tribunal had erred when it refused to accept jurisdiction as a result of a difference between a trading name (John Campbell Messengers At Arms and Sheriff Officers) and a named individual (John Campbell).
Conclusions
[38]Given the findings of fact, the Claimant’s unfair dismissal claim was comfortably submitted within the statutory time of three months and should be allowed to continue to a full hearing.[39]The authorities, although not necessarily on the same facts as this case, illustrate that the fact the Respondent did not wish the Claimant to work his notice period was not inconsistent with the fact that the Claimant was dismissed with notice. They also support the proposition that once an employee has been dismissed with notice, its not for the employer to unilaterally bring the EDT forward, or as the Respondent suggested in this case, make it obvious that that was what the Respondent had intended all along simply by paying out the Claimant’s notice pay entitlement.[40]The Tribunal accepts the Respondent’s position that it was not to review the original decision to reject the Claim. This was simply a question of whether the claim had been presented in time, based on the date that the Claim was ultimately accepted by the Tribunal.[41]Given the findings of fact, and the fact that the Claimant had had contact with ACAS to remedy the incorrect certificate before his claim was submitted, but simply omitted to inform the Tribunal of the new certificate number, one would expect that the Claimant would have had a strong tail wind with a review application. The Judge considering the matter would have had to consider the overriding objective, the purpose of early conciliation and the absence of any evidence from the Respondent.[42]The lack of evidence from the Respondent on the primary issue of the date of termination or even indication as to whether any contact had been made via ACAS was notable and played a significant part in this Tribunal’s reasoning. The Respondent did not make out any case that the Claimant’s error had deprived it of the opportunity to resolve a dispute before litigation, with the assistance of ACAS or otherwise, accepting of course that this is not necessarily determinative of the issue.[43]The factual scenario also supports the Claimant in the alternative, if for instance the Respondent was correct that the original claim was out of time.[44]The Respondent’s best argument that Claimant’s claim should have been submitted by 5 September 2019 to be within time. It argues that by this point the Claimant had a correct ACAS conciliation certificate dated 19 July 2019 and could have submitted a claim with this number or presumably updated his original claim.[45]The Claimant however had no reason to believe that his original claim was potentially flawed. He had submitted it after he had clarified the correct name with ACAS and was not to find out about the procedural error until the Tribunal notified him of this, almost three months later. His only failure was not to write to the Tribunal with an updated conciliation certificate number at an earlier point and his evidence as to why he didn’t do this was both genuine and reasonable, particularly that he had received a certificate after he had given ACAS the correct information and he wasn’t someone who checked e-mail regularly.[46]This is precisely the type of case where the overriding objective must save the day. As soon as the Claimant was notified of the error he contacted ACAS and rectified the issue promptly. The reason it took the Claimant so long was because it took the Tribunal a significant amount of time to confirm that his claim had been rejected by which point, on the Respondent’s case, his claim was already out of time. Had the Tribunal processed his claim sooner we perhaps would not have needed this hearing at all.[47]It is quite likely that by this stage the Respondent would have been notified of the claim given that a certificate against the correct Respondent had been issued over 10 weeks earlier, although there was no evidence or indication either way on this issue from the Respondent.[48]The Claimant failed to notify the Employment Tribunal of the correct ACAS certificate number, not out of ignorance or some failure to understand what his obligations were but because he had mistakenly believed that the defect had been remedied.[49]Had the Respondent been correct, that the EDT was 6 June 2019, the Tribunal would have concluded that it was not reasonably practicable for the Claimant to submit a claim in time given the obvious confusion about his EDT, the fact that ACAS reissued the certificate after the claim had been lodged and/or the delay in the Employment Tribunal informing him that his claim was dismissed, which meant that the primary time limit had already passed. The claim was then submitted promptly after the Claimant became aware of the issue, and certainly within a reasonable period thereafter.
The issues
[1]The sole issue before the tribunal is the fairness of the claimant’s dismissal, the clamant having accepted that the reason for the dismissal was misconduct. The relevant legal principles are set out in the law section below. History of proceedings[2]The claim form was submitted on 5 July 2018 but was rejected due to issues with the Acas early conciliation certificate. It was resubmitted and was subsequently accepted on 11 October 2018. A closed preliminary hearing took place on 15 February 2019, during which an open preliminary hearing was listed to deal with the issue as to whether or not the claim had been submitted in time. Further, the age and race discrimination claims and the holiday pay claims were withdrawn.[3]At an open preliminary hearing on 15 March 2019, it was determined that the unfair dismissal claim was presented in time and should proceed to a full hearing.[4]The claim had to be adjourned for various reasons and was re-listed for a final hearing on 15 and 16 September 2019. Witness evidence was heard on 15 September 2019 and submissions made. The witnesses who appeared before the tribunal were Mr George Mawoyo, Operations Manager, who conducted the disciplinary hearing and decided that the claimant should be dismissed; Mr Ray Clapson, General Manager, who heard the appeal against that dismissal; and the claimant.[5]At the conclusion of the evidence and submissions, the hearing was adjourned in order for me to make relevant findings of fact and draw my conclusions from those facts on the basis of application of the relevant legal principles. It was arranged that the parties would return at 3 pm on 16 September 2020 in order for judgement to be given orally. Written reasons were requested at the conclusion of the hearing.
Findings of fact
[6]The claimant commenced for with the respondent on 16 October 1996 as a bus driver. He was employed between 2003 and October 2010 as a Service Controller. For reasons which are not relevant to this claim, the claimant recommenced as a bus driver on a part time basis, a role he continued in between 26 February 2009 and 6 June 2018. On that date he was dismissed with twelve weeks’ notice, which meant that his effective date of termination was 30 August 2018. The claimant was not required to work during his notice period. 28 February 2017 incident[7]On 28 February 2017, the claimant was involved in a road traffic accident whilst driving one of the respondent’s hybrid LT buses. During the accident, the bus hit a van which was parked on the roadside, only stopping when that van was crushed against the wall of a property in the neighbourhood. The driver of the van was injured and had to attend hospital. The claimant attended hospital as a precautionary measure although he was soon discharged. The van was written off, substantial damage was caused to the bus and the wall of the property was damaged. The total cost to the respondent was in the region of £60,000 - £70,000.[8]The claimant maintained that he could not understand what had caused the accident. He blamed it on ‘the dreaded engine surge’, a mechanical fault he believed was present in hybrid buses. The surge issue is discussed further below.[9]The incident was investigated by a Mr Simon Cooper. The claimant was suspended during the investigation. The claimant was subsequently invited to a disciplinary hearing which resulted in a finding of unsatisfactory driving standards. The claimant was represented by the RMT trade union in those proceedings. He was issued with a final written warning which was to remain on his record for 24 months. He was warned that if he were involved in a related incident during the period of the warning, his job would be at risk.[10]The claimant was unhappy with the investigation, the hearing and the outcome, maintaining that the problem was not with his driving but with surging in hybrid vehicles generally and a specific problem with the steering of that vehicle on the day. Despite these views, the claimant did not appeal the findings or outcome. The warning therefore remained live at the time of the further incident referred to below.[11]After the incident the claimant’s driving was reviewed by a qualified trainer who concluded that his driving was satisfactory. 15 May 2018 incident[12]The second incident happened on 15 May 2018 at the bus depot in Shepherd’s Bush. The claimant was allocated to drive a bus which was parked at the far end of a line of buses by a wall. According to the claimant, in order to drive the bus out of the garage, he needed to drive it over a kerb. When the bus was climbing down the kerb the bus had suddenly gained speed and the claimant applied emergency braking and brought it to an immediate stop. That version of events is disputed by the respondent.[13]The respondent took the view that the incident was serious, and that the bus appeared to be out of control after it came off the kerb. It nearly hit an employee who was walking across the forecourt and stopping just short of a pillar. During cross-examination, the claimant denied that an employee was nearly hit. However, there is an employee clearly shown on still photographs taken from the CCTV images and I find that the respondent’s version of events is correct.[14]The claimant also suggested that the bus only travelled about 3 m (about 10 feet). I prefer the evidence of Mr Clapson on this point and find that the bus travelled about 20 to 30 feet. Mr Clapson listened to the questions put to him during cross examination and did his best to answer them. By contrast, the claimant refused to answer a number of the questions put to him by Mr Nuttman or was evasive in relation to the answers given. The claimant refused to accept that the second incident was a serious one which warranted a disciplinary investigation. It clearly was serious and the claimant should have conceded that. Further, the claimant insisted that he been represented at the second hearing by the RMT trade union, even though it was clear from the record, which claimant accepted when he was taken it, that he was represented by Unite the Union at that stage. Mr Clapson’s evidence is also consistent with the diagram showing the location of the bus at the start and end of the incident.[15]The log of any incidents with the bus involved in the accident was checked. It was found that there was no issue with the brakes, and no suggestion that it was prone to surging, in the months leading up to the accident. Nor was there any record or report of any such problems following the incident. Disciplinary investigation[16]An investigation was conducted by Mr Simon Cooper, who as noted above had conducted the fact-finding interview in relation to the first accident. The claimant was, as already mentioned, represented by Unite the Union in the disciplinary process.[17]The claimant again maintained that there was an issue with the hybrid buses surging, due to a mechanical fault. He asked Mr Mawoyo to speak to some of the other witnesses, who saw the incident, there being a total of eight. Mr Mawoyo did not do so. He did however consider the CCTV evidence.[18]There was a conflict of evidence as to whether or not the claimant initially blamed the incident on the brakes. The service controller Mr A Hounsworth who spoke to the claimant after the incident says that he did. He was spoken to by Mr Mawoyo. I have not found it necessary to reach a conclusion as to whether the claimant raised an issue with the brakes or not with the service controller in arriving at the conclusions below. The disciplinary hearing[19]Whilst the investigation was ongoing and about two weeks after the incident, Mr Mawoyo moved the claimant off route 148 to a route which meant he could drive a diesel bus, not a hybrid bus. This was not done as a disciplinary sanction. It was done as a precautionary measure, due to the claimant’s complaints about hybrid vehicles and the alleged problem with surging. It was not due to the similarity between the incident in 2017 and the May 2018 incident. Prior to taking that step, Mr Mawoyo had not pre-judged the allegations.[20]The claimant also complains that he asked Mr Mawoyo to speak to a Mr François, an engineer, prior to coming to his decision. I find that the claimant did not make any such request. He only requested that Mr Mawoyo speak to the other employees who witnessed the incident. That is consistent with paragraph 25 of the claimant’s witness statement which only refers to those eight employees, not to Mr Francois. He did not allege in his statement that he asked Mr Mawoyo to speak to Mr Francois/call him as a witness. Mr François did attend the appeal hearing in any event.[21]The disciplinary hearing took place on 6 June 2018. Mr Mawoyo concluded that the incident had happened because of pedal confusion, the same issue which led to the earlier incident. He rejected the claimant’s argument that there was a mechanical fault with the hybrid buses. He is not aware of any such incidents or problems with alleged surging. Surging is the name given to the problem of buses suddenly moving forwards at speed, without the driver doing anything. There was simply no evidence of such problems. There were on the other hand occasional problems with pedal confusion. Mr Mawoyo is aware of about five such incidents, in seven years.[22]At the conclusion of the hearing, Mr Mawoyo adjourned to consider the evidence. He then reconvened and informed the claimant of his decision to dismiss him. He considered the final written warning in arriving at his decision. He wrote to the claimant on the same day. The relevant parts of the letter state: “On closer examination of the CCTV footage, it is clear that your bus came into contact with the kerb then slightly rocked back It is evident that you had to accelerate a bit more to get over the kerb but soon after that, you accelerated at speed. Whilst I am satisfied that you accelerated on purpose to mount the kerb, you proceeded to accelerate for a couple more seconds than you intended to when you meant to have been braking. Your trade union representative clearly stated that you travelled further than you intended to — and it is evident from the footage that this was at a pace which demonstrates you had clearly lost control of the vehicle. You even jumped out of your [seat] on braking. “I found no evidence to suggest that there was a defect with the vehicle and we looked at the defects reported against the vehicle in the month prior to the incident and found none to be relevant. You also alleged that there was an issue with the type of vehicle, however, no evidence was provided to support this claim or indeed that any incidents were unique to this type of vehicle. “Based on this, l find the charge against you proven. …. “There is no doubt in my mind as to the seriousness of this incident. It is also clear particularly from the CCTV footage that this type of incident in the right time and location could have posed risk of serious injury or death. I am not satisfied that there was sufficient mitigation presented today. It is my opinion having taken this into consideration that your actions on the day in question constitute gross negligence. Sadly, the fact that you are currently on a live disciplinary award of Final Written Warning for a related incident limits the possible outcomes. In order to reflect the progressive nature of the disciplinary procedure, my decision is to statutory dismiss you from the employ of London United Busways.” [Note: statutory dismissal means dismissal with notice] Appeal Against dismissal[23]The claimant appealed against the dismissal. His appeal letter complained that the dismissal was unfair; that there been a failure to hold a proper disciplinary hearing process; the decision was harsh; the key witnesses he wanted to attend were not invited to the hearing; Mr Mawoyo had failed to monitor the Green Road events at the time of the incidents to see what went wrong; and two service controllers had confirmed that drivers had to drive over the hump/kerb to get buses out of the garage and they were still doing so.[24]On 13 June 2018, the claimant was invited to an appeal hearing by Mr Ray Clapson, the appeal manager. The appeal was heard on 19 June 2018 by Mr Clapson and a side panel member, Mr Stirling Moss, a manager at Stamford Brook Garage.[25]I find, having heard Mr Clapson’s evidence, that he approached the appeal with an open mind. I find that the trade union often asked for him to hear any appeal, as he is seen as a fair manager, who is willing to overturn dismissal decisions. Mr Clapson had in fact overturned a previous dismissal decision in relation to the claimant. Mr Clapson is fully aware of the devastating effect that a dismissal can have on an individual. He therefore takes his responsibilities in relation to appeal hearings very seriously.[26]Mr Clapson has come across a number of incidents of pedal confusion, at the rate of about one or two a year over a twelve-year period. These incidents arise with hybrid buses. All buses are automatic vehicles, whether they are diesel or hybrid. However, with automatic diesel buses, the vehicle moves forward automatically when in drive mode, without the accelerator being pressed. The brake has to be pressed to stop the vehicle moving forward. This is different to hybrid vehicles, which recirculate energy into the braking system. Which means that hybrid buses do not move forward unless the accelerator is pressed. It is this difference which can lead to pedal confusion because when driving hybrid vehicles, the driver’s foot will be hovering over the accelerator pedal, rather than over the brake pedal which is the case when driving diesel vehicles.[27]Mr Clapson was not aware of any issue with that kerb at the Shepherd’s Bush garage. In any event, Mr Clapson made it clear that even if there was a potential issue when driving over kerbs, whether in a bus depot or otherwise, the driver has to keep control of the vehicle. He agreed with the evidence of the engineer, Mr François, that a bus driver would have to press hard on the throttle, in order to get over a kerb, and that there would be a release of that energy, when the bus started to come down the kerb. He likened it to what happens when you pull an elastic band tight and then let it go.[28]The issue for Mr Clapson however is that whether a bus starts to suddenly lurch forward because of it having been driven over a kerb; or whether for example, a driver needs to take evasive action because a dog runs out in front of the bus; drivers still have to retain control of the bus at all times by applying the brake to avoid a collision. Most of the time that is what happens. Occasionally, due to pedal confusion, buses are accelerated forward instead of the brake being applied. That is down to human error, not due to any problem with ‘surging’ caused by an inherent mechanical fault with the LT buses.[29]Mr Clapson is not aware of any problems with LT hybrid vehicles surging, and that if there was such a problem, it is likely that he and Mr Mawoyo would be aware of it. The issue of buses moving forward at speed after mounting a kerb is not therefore an issue on which Mr Clapson considers training is required.[30]Prior to hearing the appeal, I find that Mr Clapson watched the CCTV footage. This is not mentioned in his witness evidence, but Mr Clapson did describe to me his clear recollection of what the CCTV footage showed. What the CCTV footage showed was that the claimant did not immediately apply the brake after the bus came down from the kerb. The brake was not applied until just before the bus stopped. When the brakes are applied, a red light is visible in the cab, which will be visible on the CCTV footage and the stills taken from that. The evidence led Mr Clapson to the conclusion that pedal confusion was at issue here, not a problem with surging due to an inherent mechanical fault.[31]At the conclusion of the appeal hearing, Mr Clapson went through the points raised by the claimant in his appeal. Mr Clapson concluded that it was appropriate to place a temporary restriction on the claimant in relation to the route he was driving. Indeed, it was good practice to do so. He conceded that it would have been good practice to call witnesses if the claimant believe they would give relevant evidence and they were willing to accept that it was common practice to drive over the kerb. There was no evidence of any surging effect with the hybrid LT bus model. The brakes had been tested and worked fine. The final written warning was relevant, as the disciplinary procedure is progressive. Further, it was right for Mr Mawoyo to raise that with the claimant at the outset of the process, so that he understood that one of the potential outcomes of the hearing was dismissal.[32]Further, the evidence of the engineer did not support any problem with surging, as he understood the term. The problem occurred because the claimant pressed the accelerator to get over the kerb and continued to do so after the bus came down off it, which caused him to lose control. This was a serious incident and dismissal was the correct sanction. Mr Clapson concluded that was so, as a result of the unwillingness of the claimant to accept any fault for the May 2018 incident. In such circumstances, he could not be sure that such an incident would not occur again, which next time could be fatal. That seriously damaged the trust that the respondent could place in the claimant’s driving in future.[33]On 20 June 2018, an appeal decision letter was sent, confirming that the dismissal decision had been upheld.
The law
[34]The law relating to unfair dismissal is set out in S.98 of the Employment Rights Act 1996 (ERA). In order to show that a dismissal is fair, an employer needs to prove that the dismissal was for a potentially fair reason (S.98(1) and (2) ERA). A tribunal must then consider the question of fairness, by reference to the matters set out in section 98(4) ERA which states: 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.[35]In a misconduct case, the principles in British Home Stores v Burchell [1978] IRLR 379 apply. The three elements of the test are: 35.1. Did the employer have a genuine belief that the employee was guilty of misconduct? 35.2. Did the employer have reasonable grounds for that belief? 35.3. Did the employer carry out a reasonable investigation in all the circumstances?[36]The Tribunal must then determine whether the employer’s decision was within the range of reasonable responses which a reasonable employer could come to in the circumstances. That is not a perversity test. But it does mean that the job of an employment tribunal is in effect to review the decision, rather than to decide what decision it would have come to in the circumstances of the case. This is something that is often misunderstood by claimants, who hope that when an employment tribunal considers an unfair dismissal case, the tribunal will consider the evidence afresh and arrive at its own decision as to what the disciplinary decision should have been. That would however mean the tribunal was guilty of the substitution mindset by substituting its own decision for that of the employer. The law is clear; tribunals cannot do that.[37]Instead, the function of the Employment Tribunal, as an industrial jury, is to determine whether in the circumstances of each particular case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair. Further, in looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the tribunal's view, have been appropriate, but rather whether dismissal was within the band of reasonable responses that an employer could reasonably come to in the circumstances.[38]Where there are problems with the disciplinary hearing itself, those can in some circumstances be remedied by the appeal, even if the appeal is not a complete rehearing. What is important is that the procedure was fair overall - see Taylor v OCS Group Limited [2006] IRLR 613.[39]In Davies v Sandwell MBC [2013] EWCA Civ 135, the Court of Appeal identified the "need for a restrictive approach to the question of when it is legitimate for a tribunal considering the fairness of a dismissal to go behind a final written warning given in the past". An Employment Tribunal can however consider whether a final warning was "manifestly inappropriate", when assessing the reasonableness of the decision to dismiss which was based on that warning.
Conclusions
[40]Mr Kalanzi accepted that the reason for the claimant’s dismissal was misconduct. The sole issue before the employment tribunal therefore was the question of the fairness or otherwise of the dismissal, bearing in mind the legal principles set out above, starting with the Burchell test. Genuine belief[41]As for the question of genuine belief, I conclude that both Mr Mawoyo and Mr Clapson had a genuine belief that the claimant was guilty of misconduct, namely unsatisfactory driving standards, as a result of pedal confusion. Reasonable belief[42]I conclude that this belief was reasonable in all the circumstances. On the basis of the evidence before them both, it was reasonable for them to conclude that the problem was unsatisfactory driving standards due to pedal confusion, not an inherent mechanical fault with the hybrid LT buses; or a lack of relevant training. I shall expand on these conclusions below, in relation to the specific issues raised on the claimant’s behalf. Reasonable investigation[43]Finally, I conclude that the investigation was reasonable in the circumstances. I bear in mind that the tests to apply is whether the conduct of the investigation is within the range of reasonable responses. It does not have to be a perfect one, with no stone left unturned.[44]Turning to the particular issues raised on the claimant’s behalf, I reject the argument that Mr Cooper should not have conducted the investigation into the second incident, due to his involvement in the first. I find that the investigation that he conducted was a reasonable one, on the basis of the information before him.[45]Next, I do not consider that on the facts of this case, it was necessary for Mr Mawoyo to speak to the eight bystanders. The CCTV evidence was sufficient, in the circumstances. That reasonably demonstrated what happened outside as well as inside the cab. Oral evidence from bystanders would not have been as reliable or informative or be likely to have added much if anything.[46]As for the engineer Mr Francois not being called to the disciplinary hearing, I refer to the fact-finding above, that this was because the claimant had not asked for him to be present. In any event, he was present at the appeal, so if there had been any fault on the part of the respondent in relation to his nonattendance at the disciplinary process (a conclusion which I reject), that was cured by the appeal process.[47]Mr Kalanzi complains that the CCTV evidence was not given to the claimant prior to the disciplinary hearing. He only had 20-minutes to consider that with his representative and consider his defence. I do not consider that this means that the investigation was outside the range of reasonable responses. To the extent that the respondent relies on data protection issues in support of any general argument that CCTV evidence cannot be provided in advance of the hearing, I accept Mr Kalanzi argument that it would be relatively easy to arrange for a claimant and their representative to view the evidence, at the one of the respondent’s offices, prior to the hearing. That is perhaps something that the respondent may wish to look at in future. However, I conclude that any disadvantage to the claimant was minor in the circumstances of this particular case and that his defence would not have been any different, and nor would the outcome, if he had been able to view the CCTV evidence several days before the disciplinary hearing, rather than just during the hearing itself.[48]I further conclude that it was reasonable for Mr Mawoyo to conduct the disciplinary hearing. Moving the claimant to a different route, so that he could drive a diesel bus, was done to protect the claimant, in the light of his insistence that there was a mechanical fault with the hybrid buses. Whilst the disciplinary policy does allow for individuals to be moved to different shifts or different garages, as a disciplinary sanction, at the conclusion of a disciplinary hearing, that was not the reason for the claimant being moved to a different route. Nor did it mean that Mr Mawoyo had in any way prejudged the issues. Overall fairness and the range of reasonable responses[49]As for whether the dismissal was within the range of reasonable responses, I conclude that it was. As for the training issue, the claimant’s own evidence in relation to whether or not there was a problem with driving over the kerb was unclear. The evidence he gave to the tribunal was that the 2017 incident was not related to him driving onto the kerb. In those circumstances, there would be no reason why the respondent would have provided any training in relation to that issue. Further, I accept Mr Clapson’s position that the fact that buses might start to shoot forward having been driven onto and off a kerb, is not the real issue. The real issue is whether, in any circumstances where drivers have to take evasive action, they are able to maintain control of the bus by pressing the right pedal; in this case the brake, instead of the accelerator. That did not require training.[50]The conclusion that the 2017 and 2018 incidents were caused by pedal confusion, rather than there being a mechanical fault with the hybrid buses was an eminently reasonable conclusion for Mr Mawoyo and Mr Clapson to come to. Even though I accept that the claimant has a genuine belief that there is a problem with the hybrid buses, that is not supported by the evidence.[51]The claimant said that there were other drivers who knew that there were problems with surging but they were afraid to come forward. That bare assertion is not a reasonable basis upon which I could conclude that there is indeed such a problem, given that the clear evidence given by Mr Mawoyo and Mr Clapson that hybrid buses are not involved in a higher incidence of accidents compared to other types of vehicle. I am satisfied that the relatively rare problems that do occur at the respondent’s workplace (one or two a year), occur as a result of pedal confusion, not any inherent mechanical fault.[52]Given that relative rarity, the fact that the claimant had been involved in two serious incidents, in relatively quick succession, was something that the respondent was entitled to take into account, when deciding whether or not to dismiss. That is particularly so, in the light of the claimant maintaining that the fault was with the buses, and not with his driving. In those circumstances, it was reasonable for Mr Mawoyo and Mr Clapson to conclude that the claimant would not accept any culpability, and there might therefore be a further incident, in which the consequences could be fatal. They were entitled to refuse to take that risk. And they were entitled to lose trust in the claimant, because of to the position he maintained. The final written warning[53]Finally, as for the final written warning, that was not something that was challenged at the conclusion of the disciplinary hearing outcome in 2017, even though the claimant was represented by a trade union then as well. Further, issues were not raised in relation to that warning at either the disciplinary or the appeal hearing in relation to the second incident. They were only raised at this hearing for the first time. That would be sufficient for me to conclude that it was reasonable for the respondent to take that warning into account in deciding whether or not dismissal was an appropriate sanction.[54]In any event, there was simply no evidence put before me upon which I could reasonably conclude that the final written warning was a manifestly inappropriate sanction. On the contrary, the evidence that was before me lead me to the conclusion that the sanction was an entirely reasonable one, and that were it not for the claimant’s long service record, the respondent would have dismissed the claimant in 2017 and seriously considered doing so at the time. It also made clear what the consequences would be of a related incident occurring whilst the warning was still live.[55]For all of the above reasons, I concluded that the claimant’s dismissal was fair, by reason of misconduct. The unfair dismissal claim is therefore dismissed.