Employment Judge MortonMs L Chapman (instructed by Counsel) for claimantMs S Cummings (instructed by Counsel) for respondentDate 8 September 2021
JUDGMENT
It is the judgment of the Tribunal that the Claimant’s claims of unfair and wrongful dismissal fail and are dismissed. THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE: EMPLOYMENT JUDGE MORTON (sitting alone) BETWEEN: Mr D Wilson Claimant AND Abellio London Limited Respondent ON: 2 September 2021 Appearances: For the Claimant: Ms L Chapman, Counsel For the Respondent: Ms S Cummings, Counsel Written reasons provided in response to a request by the claimant Introduction[1]Oral judgment dismissing the Claimant’s claim of unfair dismissal was given at the end of the hearing on 2 September. The judgment was sent to the parties and the Claimant asked for written reasons. Those reasons are set out below. I apologies for the delay in providing these reasons, which has been due to the pressure of other work. The claims[2]By a claim form presented to the Tribunal on 5 December 2020 the Claimant, Mr Wilson, brought to the tribunal a claim of unfair dismissal after he was dismissed for gross misconduct from his employment. The Respondent resisted the claim.[3]The hearing was conducted remotely by CVP. Given the problems of the pandemic at the time this was a reasonable manner in which to conduct the hearing. The parties consented and the witnesses all gave evidence clearly and could be seen and heard by all parties. I was satisfied that each witness was giving evidence on their own account and there is no question that their evidence was interfered with in any way in the course of giving evidence.[4]Mr Wilson gave evidence on his own behalf. The Respondent’s evidence was given by Mr D Hannan, driver manager, who undertook an investigation into the Claimant’s conduct, by Mr Moran, operations manager, who conducted the disciplinary hearing and took the decision to dismiss the Claimant and by Stephanie Achief, employee relations manager, who conducted the appeal. The witnesses had prepared written statements, which I read before the hearing. I was provided with a bundle of documents containing 112 pages. Any reference to page numbers in these reasons is a reference to page numbers in that bundle.[5]I read all the statements and the principal documents before the commencement of the hearing. During the course of the hearing I viewed some CCTV footage of the Claimant’s action during the incident that led to his dismissal. The law and the issues[6]It is for the Respondent in an unfair dismissal case to establish that it had a potentially fair reason to dismiss the Claimant. In this case the Respondent relied on the Claimant’s misconduct. Misconduct is a potentially fair reason to dismiss under section 98(2)(b) Employment Rights Act 1996 (“ERA”). The question of whether the Respondent is entitled to rely on the alleged misconduct to dismiss the Claimant fairly involves consideration of the test in British Home Stores v Burchell [1980] ICR 303, that is, whether the Respondent at the time of the dismissal had a reasonable belief in the employee’s guilt based on reasonable grounds after conducting such investigation as was reasonable in the circumstances. The standard to be applied to the investigation carried out by the Respondent in a misconduct case is also a standard based on what a reasonable employer might have done (Sainsbury’s Supermarkets v Hitt [2003] IRLR 23).[7]Further issues then arise under section 98(4) ERA which provides that the question of whether the dismissal was fair or unfair involves considering of whether, having regard to the reasons shown by the Respondent, in all the circumstances of the case, including the size and administrative resources of the Respondent’s undertaking, the Respondent acted reasonably or unreasonably in treating the reason relied on as a sufficient reason for dismissing the Claimant. The question must be determined in accordance with equity and the substantial merits of the case. In accordance with the case of Iceland Frozen Foods v Jones [1982] IRLR 439 the Tribunal must not in reaching a decision on the reasonableness of the Respondent’s decision to dismiss substitute its own view as to what it would have done in the circumstances but must instead consider whether the Respondent’s response fell within a band of responses which a reasonable employer could adopt in such a case.[8]In order to meet the test in section 98(4) the Respondent must also follow a procedure that is fair in all the circumstances. That will ordinarily involve compliance with the provisions of the ACAS code of practice on grievances and discipline and with the Respondent’s own written procedures.[9]In a case in which a dismissal is found to be procedurally unfair consideration must also be given to the principles in the case of Polkey v A E Dayton Services [1988] ICR 142 and if it appears that the Claimant would have been fairly dismissed in any event had a fair procedure been followed then any compensation awarded must be reduced to reflect the percentage chance of that being the case.[10]In a case in which the Claimant is found by the Tribunal to have been unfairly dismissed for misconduct the Tribunal must, if it has found that the Claimant has to any extent caused or contributed to her own dismissal reduce any compensation by such amount as the Tribunal considers just and equitable having regard to that finding (section 123(6) ERA). A finding of contributory fault can only be made if the Tribunal forms the conclusion that the Claimant has on the balance of probabilities been guilty of misconduct alleged. Findings of fact and conclusions[11]I make the following findings of fact on a balance of probabilities having considered the oral and written evidence presented to me. My findings are based on the issues that need to be decided in an unfair dismissal case and will not include findings on matters of dispute between the parties that are not relevant to those issues. The evidence presented to me included some CCTV footage, which I reviewed during an adjournment of the hearing. I took the decision to review this evidence as the Respondent had placed such heavy reliance on it in arriving at an understanding of what had happened and in reaching its decision that summary dismissal was appropriate.[12]The Respondent is a Private Limited Company, which, along with Abellio Surrey Limited, operates a public transport service across Central, South and West London and North Surrey. The Claimant was employed by the Respondent as a bus driver from 28 August 2012 until his dismissal for gross misconduct on 13 August 2020.[13]The Respondent provides its drivers with a safety manual called the Big Red Book. Extracts from the manual were at pages 39-41. It is clear that if an incident arises that causes a driver to feel that their safety is under threat they should remain inside the driver’s cab – this instruction appears several times in the extract.[14]The Claimant’s dismissal resulted from an incident that occurred on 29 February 2020. The Claimant gave a different account of this incident from the Respondent and I have found the Respondent’s account more likely to be true. In summary, the Claimant had informed iBus that he had been dragged from the driver cab and attacked by about four men and hit by a bottle on the head. He alleged that one of the men involved was armed with a knife. The account set out in the Respondent’s grounds of resistance differs from this summary in material respects and is I find, a truthful account of the matters leading to the Claimant’s dismissal.[15]The facts as I find them on a balance of probabilities are as follows. The Respondent was notified of the incident in question when the Claimant, whilst on duty driving bus route 414, contacted iBus Control (the Respondent’s incident reporting system for bus drivers) regarding an altercation which took place between him and three members of the public who were trying to board the bus without the correct fares. The police and an ambulance attended the scene after being notified of the altercation by iBus. During the incident the Claimant sustained a cut on his head and was taken to Chelsea and Westminster Hospital. The Claimant did not return to work following this incident and was off for a period of sickness absence and furlough until his return to work on 4 August 2020.[16]Upon the Claimant's return to work on 4 August 2020, the Respondent conducted an investigation into the circumstances of the incident on 29 February 2020 and the Claimant was asked to attend a fact finding meeting. The investigation and meeting was conducted by Mr Hannam. Mr Hannam asked the Claimant to provide his version of events and the CCTV footage of the incident was also reviewed at the meeting. Mr Hannam established a clear timeline of events which he set out as follows: “08:40:59 — Bus arrives at stop, 1 passenger leaves, bus waits for 3 running passengers who board. They then engage in conversation with driver 08:43:34- One appears to put £10 note on cash tray 8:43:47 — All 3 leave the bus—Driver makes no attempt to shut doors 08:43:53 — 1 re-enters bus, followed by other 2 08:44:56 -— All 3 leave bus, driver seen making hand gestures, does not attempt to shut doors 08:45:05 — Passengers on pavement, appearing to be arguing with driver 08:45:23 — 1 re-enters bus, appears to be talking with driver 08:45:37 ~ 1 more boards, driver closes door 08:45:49 — 1 walks in front of bus, possible to drivers cab-no camera view of this area. 08:46:03 — Male walks back in front of bus to pavement 08:48:02 ~ All 3 leave bus, driver makes no attempt to shut door. 08:48:19 —— 1 re-enters bus 08:48:34 — Driver shuts door with 1 on bus 08:49:00 — Door re-opens 08:49:06 — 1 male leans down and appears to spit thru gap between screen and wayfarer 08:49:06 — Blue flask seen in drivers hand, raised above head, cab door opens and driver strikes male with flask: 08:49:09 - Driver leaves cab 08:49:17 — Driver appears to be pulled from bus, he grabs edge of assault screen breaking it, confrontation continues on pavement, then all come back on bus continuing to fight. 08:50:15 — 3 males leave the scene, taking drivers bag.”[17]The timeline indicated to Mr Hannam were three occasions prior to the assault on which the Claimant could have closed the bus doors to bring the incident to an end and eliminate further risk of harm, but he did not do so.[18]The Claimant's account of the incident was that the door of his cab was faulty and had been forced open by one of the youths using a knife with which he was armed. As a result of that he had had to defend himself with his flask. Mr Hannam could not reconcile that account with what was visible from the CCTV footage, from which he concluded that the Claimant in fact opened the driver cab door to hit one of the individuals involved with his flask.[19]Mr Hannam therefore decided to suspend the Claimant with immediate effect and to instigate formal disciplinary proceedings in accordance with the Respondent’s Disciplinary Procedure. He explained at the meeting his reasons for doing so and confirmed the suspension by letter dated 4 August 2020 (pages 81-82). On 5 August 2020, the Respondent wrote to the Claimant (page 83) requesting his attendance at a disciplinary hearing on 13 August 2020 and provided him with the findings of the investigation. The Claimant was informed of his right to be accompanied to the hearing and was warned that a possible outcome of the hearing was summary dismissal.[20]The allegations to be put to the Claimant at the hearing were:a. Action likely to threaten the health and safety of himself, customers or members of the public.b. Serious breach of Respondent’s health and safety rules and procedures.c. Fighting, assault or attempted assault on another person. All these were matters included within the Respondent’s disciplinary policy as matters that could lead to summary dismissal (pages 44-45). The specific concern was described as “an incident on your bus on the 29 February 2020, the allegation being that you failed to follow correct procedures, opened your drivers cab door and attacked a member of the public by striking him with a flask”.[21]The disciplinary hearing was held on 13 August 2020 and was chaired by Mr Moran and attended by the Claimant with his union representative. At the hearing, the Claimant was given the opportunity to state his case, ask questions and present evidence. The CCTV footage was viewed again and Mr Moran asked the Claimant for an explanation of his actions at each stage of the incident. The Claimant’s account of the incident was that he switched off the bus engine, which remained off throughout, that the youths involved were shaking the cab door and opened it with a knife and that he believed that he done nothing that had contributed to or escalated the situation. He said that he had acted in self-defence and was afraid that he was going to be attacked. The meeting lasted an hour and half, with the Claimant’s representative putting forward points in mitigation at the end, including the Claimant’s long service and good record with the Respondent. Mr Moran then adjourned to decide the outcome.[22]Whilst he accepted that the cab door moved slightly when shaken, Mr Moran concluded from his viewing of the CCTV that it did not show that any of the youths was armed with a knife and did not show any of the youths opening the cab door. On the contrary it appeared that the cab door was opened by the Claimant following which he attacked one of the youths with his flask. Viewed from various angles the CCTV showed that the youths were not close enough to the cab door at the time it opened for the Claimant‘s account to be plausible. Mr Moran concluded that the Claimant should be summarily dismissed and he returned to the meeting to communicate that decision. He considered whether there were any alternatives to dismissal, but as the Claimant already operated at the lowest grade, there was no possibility of demotion.[23]Mr Moran gave the following reasons for dismissal in the outcome letter (page 90- 91) (my italics):• The CCTV showed that you had ample opportunity to close the doors and move on from the bus stop when the 3 youths alighted the bus at 08:43, 08:44 and 08:48.• I did not believe that you had turned the engine off to speak over the radio but in fact did so to show the bus would not be moving while the youths were on board.• I also did not believe the doors would not close when the engine was off as you had closed the doors repeatedly and did so trapping one or more of the youths on the bus. This had also increased the already highly charged atmosphere.• You failed to depart and were seen pointing at the youths when they were both off the bus and when back on board. You were provoking the youths by pointing at them. l did not believe you were pointing to advise they go to the shop but in fact were pointing to reiterate the point that they will not be travelling on your bus.• You stated the youth opened the cab door. Based on CCTV evidence it would be impossible for the youth to do so based on his positioning as he spat at you. It was my belief that you had opened the door with the sole intent of attacking the youth.• I also did not believe the flask was in your hand as a result of you emptying your bag but was in fact in your hand ready in preparation to attack the youth.• While I accept the act of spitting to be an abhorrent act, I cannot condone your actions to leave the safety of your cab and attack the youth. The image still at 08:49:09 showed you leaving your cab, clearly out of control with rage and attacking the youth with the flask.• It is clear the incident would not have escalated had you closed the doors and departed the stop.• You could and should have then called iBus to warn following buses of the fact that there were youths at this stop who were attempting to board without paying.• There was no evidence of the youths carrying any form of weapon; certainly no knife is seen.• The fight takes place on the bus and spills out on to the pavement in full view of passers-by. The fight then continued back on the bus towards the middle of the bus which was a concern for passengers on board. Their safety was now at risk as the fight was out of control.• You did not accept any fault for what occurred on the day. I considered alternatives to dismissal such as demotion, although decided that this was not appropriate due to there being no positions available at a grade lower than driver at Abellio. Charge 1 was proven as you had endangered your own safety by provoking the youths, not departing the stop when the youths had alighted and by leaving the safety of your cab, The fight had spilled out on to the pavement and inside the bus which placed passengers and the public at risk of injury. Charge 2 was proven as you had breached health and safety procedures in leaving the safety of your cab. Charge 3 was proven as you had attacked the youth with a flask and became embroiled in a fight with all 3 youths.[24]I have italicised those extracts from the letter which contained conclusions that I did not consider to be justified on the evidence. Those aspects of Mr Moran’s conclusions were not conclusions that a reasonable employer could, in my judgment have reached because they involved an element of conjecture or supposition rather than being based on the evidence. In that respect I noted that the Claimant had requested audio recordings of the incident. Although I accepted the Respondent’s assertion that such recordings were not retained and would not have been available, it did seem to me that Mr Moran would have needed some evidence of what the Claimant had actually said at the time, to be able to conclude that he had provoked the youths. I also considered that he had gone further than the evidence justified in concluding that the Claimant had deliberately taken his flask out of his bag with the intention of attacking the youth or that he had been “out of control with rage”. With the exception of those points, which were not central to his conclusions I consider that he reached a reasonable overall conclusion about those aspects of the Claimant’s conduct that were had been put to the Claimant at the disciplinary hearing. I return briefly to this point in my conclusions.[25]The Claimant appealed against this decision by letter at page 93. His grounds of appeal were as follows: I would like to challenge the decision to terminate my employment by reason of gross misconduct, which I was told after the hearing of a meeting held on the 13‘h of August 2020. This is because I believe the grounds for this decision was unfair, brutal and inaccurately examination of evidence and no regards to my life which could have been lost in the attack that took place while I was just doing my job. The manner in which termination was taken did not abide by the Acas Code of Practice. All the evidence was not available at the hearing.[26]An appeal hearing took place before Ms Achief on 24 September 2020. Ms Achief took a thorough approach to the appeal and carried out some additional investigation by speaking to the fleet manager in the engineering team about the potential for the cab door to be opening with a knife (he confirmed that this was not possible). The appeal outcome letter (pages 100-102) was sent on 16 October 2020. She did not uphold the appeal and gave detailed reasons, again referring to the timeline of events and setting out her view that the Claimant had failed to adhere to the guidelines in the Big Red Book and had inflamed the situation with his own actions. She also noted that throughout the disciplinary process the Claimant had failed to take responsibility for his own actions. She noted the points raised about additional evidence in the form of the audio recordings, but did not consider that they were likely to contain any evidence that would contravene what was clear from the CCTV footage. She found all three of the disciplinary charges were upheld and confirmed the decision to dismiss summarily for gross misconduct. Submissions[27]For the Respondent Ms Cummings submitted that the conclusions reached were conclusions that were open to a reasonable employer, on the facts and evidence, including the CCTV footage and what that demonstrated about the plausibility of the Claimant’s explanations. It was clear that the Claimant had breached the guidelines in the Big Red Book, that it was not credible that the door had been opened through mechanical fault or by one of the youths and that the most likely explanation was that the Claimant had opened the door himself and had then hit one of the youths with his flask, provoking the fight than then ensued and placing himself and the other passengers on the bus in danger.[28]She also submitted that the process the Respondent followed was fair, including the fact-finding meeting at the start. Although the Claimant had not been expecting an investigation into his own conduct, it was clear what was being discussed. All the questioning to which he was subject was designed to elicit the facts and he was able to view the CCTV footage during the hearings. The Respondent had been reasonable both in the conclusion that it reached and in relying on the CCTV footage to support that conclusion.[29]It was also clear from this that the Claimant’s dismissal had not been wrongful and that he had contributed to his own dismissal by engaging in culpable conduct. As regards the Claimant’s submission that the seriousness of the assault had not been taken into consideration, Ms Cummings submitted that it was the Claimant who put himself in harm’s way by leaving his cab contrary to the issued guidelines. It was, she submitted, within the band of reasonable responses to dismiss the Claimant, given the seriousness of the allegations and the Claimant’s failure to accept any responsibility for his actions. There were no demotion opportunities available to the Respondent. If there had been any procedural unfairness, it would not have made any difference to the outcome.[30]For the Claimant Ms Chapman submitted that the real reason for the Claimant’s dismissal was the Respondent’s wish to avoid accepting responsibility for a faulty door and lack of adequate Covid protection that put the Claimant at risk of spitting. Insufficient weight was given to mitigating factors such as the Claimant’s work history. The Claimant, she submitted, had admitted he had hit someone, but that he had panicked when surrounded by the youths. He had acted in reasonable selfdefence and the Respondent’s decision was unduly harsh, given there was no evidence of previous lapses of judgment of this nature and the Claimant had been in fear when it occurred.[31]She also challenged the fairness of the process, pointing out that the investigation meeting had taken place many months after the incident and the Claimant had been furloughed for much of that period, meaning that the delay required explanation. The mode of questioning at the investigation meeting had been unfair and no allowance had been made for the Claimant’s mental state, although he was clearly distressed. The Claimant continued to maintain that audio-recordings of the incident existed and should have formed part of the investigation. Conclusions[32]I have set out above a summary of the legal issues that arise in an unfair dismissal case. I am satisfied that the Respondent has shown that there was misconduct by the Claimant and that it has therefore established that there was a fair reason to dismiss under s 98 ERA. I do not accept the interpretation of the facts put forward by the Claimant, namely that the Respondent was trying to deflect attention from its own health and safety shortcomings by dismissing him.[33]Although not every aspect of the analysis adopted by Mr Moran stands up to scrutiny (for example it was not logical for him to have concluded that the Claimant provoked the youths by pointing at them when their backs were turned) it is clear to me that he was reasonable in concluding on the basis of the CCTV footage that the Claimant did mount an attack on the youth who had spat at him by using his flask to hit him. It also appears to me reasonable on the basis of that footage for the Mr Moran to have concluded that it was the Claimant who opened the door of his cab in order to pursue the youths. It was clear from the CCTV footage that the Claimant had failed to follow guidelines by leaving his cab, that he had hit one of the youths with his flask and that he had failed to take the opportunity to close the bus doors and drive away at three separate points during the incident.[34]There were therefore ample grounds for a finding of misconduct. I am also satisfied that it was within the band of reasonable responses to dismiss on the facts, conscious as I am of the need not to substitute my own view, but to consider what a reasonable employer could have done in this situation.[35]It is clear from the CCTV footage and the timeline of events that the Claimant had alternatives to handling the situation in the way that he did and that there were several opportunities for closing the doors of the bus and either driving away or waiting for help. There were clear breaches of the Respondent’s health and safety guidelines in the Claimant having adopted the course that he chose and both the Claimant himself and his passengers were endangered as a result. The breaches were not minor and in deciding to override the Claimant’s good record and dismiss, Mr Moran was influenced not only by the lack of an alternative sanction (I accepted the Respondent’s submission that there were no available alternative roles for a bus driver), but also by the Claimant’s lack of insight into his own behaviour and lack of remorse, which continued in his evidence at the Tribunal hearing. I have taken into account the clear evidence that the Claimant was provoked, and I do not underestimate how provoking it must have been to be spat at by a confrontational passenger in the midst of the pandemic. It was not only disgusting but also dangerous at that time. However the Respondent was justified in treating the Claimant’s apparent loss of control and lapse of judgement in the wake of that provocation as a very serious rupture in the relationship of trust and confidence. Driving a bus is a highly responsible job in which passenger safety is paramount. The Claimant’s departure from the Respondent’s expected standards was very serious and endangered passengers as well as himself.[36]I find that the appeal stage of the process was commendably thorough and that Ms Achief was a credible and reflective witness who carried out an additional investigation after the appeal hearing in order to ascertain whether what the Claimant alleged was potentially true, namely that the cab door had been opened by the group of passengers from the outside with a knife. Her conclusion, based on this additional investigation, was clearly within the band of reasonable responses. I did not consider that Mr Hannam’s investigation had been inadequate or flawed and I consider that it met the standards of a reasonable investigation in a misconduct case of this nature. But even if I am wrong about that and it had been the case that Mr Hannam’s original investigation had been deficient then any deficiency would have been cured by Ms Achief’s conduct of the appeal.[37]On the matter of wrongful dismissal and contributory fault, I consider not only did the Respondent act reasonably in treating the reason relied on a reason to dismiss the Claimant, I also consider that the Claimant did perform the acts of misconduct for which he was dismissed, meaning that his dismissal without notice was not wrongful. He also contributed to his own dismissal – he was the sole author of it in my view and it would accordingly be the case that even if I were to make an award for unfair dismissal based on the procedure adopted by the Respondent it would be extinguished by that contribution.[38]As regards Polkey, I accept that there was potentially a delay in investigating the incident, but even if I accepted that in all the circumstances (including the strain imposed on all concerned by the pandemic) that the delay caused the procedure adopted to be unreasonable, I do not think the outcome would have been any different if the investigation had occurred earlier. For completeness, I found nothing to criticise in the disciplinary and appeal stages of the disciplinary process. The Claimant was, I have found, given ample opportunity to explain himself at the disciplinary hearing before Mr Moran and at the appeal hearing before Ms Achief. At both hearings he had the assistance of a trade union representative and as noted, Ms Achief took the additional step of verifying for herself whether the Claimant’s account of the opening of the cab door could have been credible.[39]It is of course very regrettable indeed that the Claimant was so badly hurt in the incident, but as Ms Cummings submitted, avoidance of such injury is exactly what the Respondent’s health and safety guidelines are designed to avoid. The Claimant must bear responsibility for putting himself in danger when that could have been avoided, which is not to detract from the very unpleasant injuries that were inflicted on him.[40]In all the circumstances of this case I find that the Claimant was fairly dismissed and that his dismissal was not wrongful.