Mr J Godinho v Transport UK London Bus Ltd: 3303498/2024
EMPLOYMENT TRIBUNALS
Case No 3303498/2024
Between
Mr J GodinhoClaimantTransport UK London Bus LtdRespondent
Before
Employment Judge Sarah MatthewsIn person for claimantMs Jones (instructed by counsel) for respondentDate 11 August 2025
JUDGMENT
The decision of the tribunal is that: The complaint of unfair dismissal is not well-founded. The claimant was not unfairly dismissed.
REASONS
[1]The respondent is a public transport operator which employed the claimant as a PCV driver. It dismissed the claimant for the stated reason of gross misconduct, believing him to have been absent on unauthorised leave. This case is about whether its decision to dismiss the claimant was unfair.[2]I decided that the first part of the hearing would determine liability and Polkey issues (see paragraph 6 below). We would deal with remedy on the final day if the claimant was successful. During the first part of the hearing we would also hear evidence on the issue of whether the claimant should be reinstated if he was successful (because the respondent’s witness could not attend on the final day).[3]I was initially provided with a bundle of 156 pages. One page was added by the claimant on the second day regarding an issue about his physiotherapy appointment on 27 November 2023 and that was numbered 157.[4]The claimant gave evidence on his own behalf. Marta Leszczynska (ML), Training and Recruitment Manager (previously Operations Manager who conducted the disciplinary hearing), gave evidence on behalf of the respondent. I was also provided with statements from Satinder Uppal, the claimant’s line manager, and Alan Shellard-Dedman, the appeal officer. Both those witnesses had left the respondent by the time of the hearing and did not attend to give evidence. I have decided to disregard their statements. I have managed to resolve issues of fact where there was a dispute by reference to the evidence of the claimant, ML and the documents.[5]References to pages in the bundle below are set out in brackets(x). References to paragraphs in the witness statements consist of the witness’s initials and number of the paragraph (AB-YZ). In the case of the claimant the reference is C followed by the number of the paragraph (C-YZ)[6]A list of issues to be decided were drawn up by counsel for the respondent prior to the hearing. Following the claimant stating that he was seeking his job back, the issues were amended to include reinstatement as an issue. I agree that those reflect the issues I need to decide and they are set out below. 1. UNFAIR DISMISSAL1.1 Was the reason for the Claimant’s dismissal conduct pursuant to section 98(2)(b) of the Employment Rights Act 1996 (the “ERA”)?1.2 If yes, did the Respondent act reasonably in dismissing the Claimant for that conduct pursuant to section 98(4) of the ERA? In particular:1.2.1 Was the dismissal procedurally fair?1.2.2 Did the Respondent believe the Claimant to be guilty of misconduct?1.2.3 Did the Respondent have reasonable grounds for believing that the Claimant was guilty of that misconduct?1.2.4 At the time it held that belief, had the Respondent carried out as much investigation as was reasonable?1.2.5 Did the decision to dismiss fall within the range of reasonable responses available to the Respondent in the circumstances? 2. REMEDY If the Claimant is successful in his unfair dismissal claim:2.1.1 What financial losses has the dismissal caused the Claimant?2.1.2 Has the Claimant taken reasonable steps to replace their lost earnings?2.1.3 If not, for what period of loss should the Claimant be compensated?2.1.4 Should any compensatory award due to him be reduced on the basis2.1.4.1 The Claimant would have been dismissed in any event pursuant to the case of Polkey v AE Dayton Services Ltd [1987] ICR 142 or for some other reason?2.1.4.2 It would be just and equitable to do so?2.1.4.3 The Claimant caused or contributed to his dismissal?2.1.5 Did the Respondent fail to follow the ACAS Code? If so, should there be an uplift to any compensatory award in respect of any failure.2.1.6 What basic award is payable to the Claimant, if any?2.1.7 Should the tribunal order reinstatement or re-engagement?
Findings of fact
[7]The claimant was employed by the respondent, a company which operates public transport services in London, as a Bus Operator from 23 January 2017 to 27 December 2023. The claim is about termination of his employment. The claimant says he was unfairly dismissed, the respondent says he was dismissed for gross misconduct. The claimant went to Acas on 14 February 2024 and received an Acas certificate on 25 March 2024. His claim form was received at the tribunal on 26 March 2024.[8]The claimant has a history of back problems since February 2022(C/6). An MRI scan was carried out when he was in India on 12 March 2022 (64-66). The claimant was on sickness leave for back pain from 1 August 2022 to 31 January 2023 (73) (C/7). He was referred to Occupational Health by the respondent on 22 August 2023 (108).[9]There was a dispute at that time about the claimant not being paid company sick pay (75 to 93). I am satisfied that that has no relevance to the issues I need to decide today and I make no findings on that.[10]The claimant was also on sick leave for leg and back pain from 16 July 2023 to 7 September 2023 (C/13). The claimant’s disciplinary record.[11]The claimant attended a disciplinary hearing on 24 November 2022 for ‘Unsatisfactory attendance, (3 spells or more [of absence] within a 12 month period)’. He received a six month verbal warning (106). That warning had expired by the time of the events relevant to this claim.[12]On 11 September 2023 he had a further disciplinary for unsatisfactory attendance (113) for which he was also given a six month verbal warning (117). That was still in force at the date of dismissal.[13]At those disciplinary meetings, as part of the disciplinary process, he was referred to the respondent’s Attendance policy (45-63). The claimants request to take five weeks off[14]On 12 September 2023 the claimant requested a move to part-time working because of his back condition. An agreement on that was not reached. I refer to it further below when I discuss the appeal.[15]The claimant had two managers, one was Jakub Gluchowski (JG), and the other was Satinder Uppal (SU). On 21 November 2023 the claimant sent an email (120) to JG, which was forwarded to SU. The email was headed “Medical leave”, and it stated that the claimant had an appointment on 9 December 2023 in India which was going to take nearly five weeks and concluded, “I am booking my flight for 6 December please do the needful”.[16]The email followed an oral conversation on 18 or 19 November 2023 when JG told the claimant to send him an email once he had a doctor’s letter with the date of the appointment (C/15).[17]Attached to the email was a certificate from a doctor in India (119). It stated: “Certified that the above named has an appointment for a comprehensive Medical Examination commencing from 09th December 2023. The subsequent appointment and consultations may required all together 5 weeks.”[18]Having received that email on 22 November 2023 the respondent immediately referred the claimant to Occupational Health (OH). The request for the appointment asked for information about the claimant’s condition, why he needed treatment abroad, and why it would take five weeks (121).[19]The OH appointment took place on 30 November 2023. That was the earliest it could reasonably take place (in evidence ML explained that the respondent’s OH external provider only provides appointments once a week). The claimant told the OH consultant that he wanted to take the time as a combination of holiday and unpaid leave. The claimant thought that information should have been passed on to the respondent, but it was not. The claimant did not directly put that proposal to the respondent himself. He told the OH consultant that he had arranged investigations in India because he was frustrated by the slowness in the UK.[20]On 4 December 2023 the respondent received the OH report (122). The report said that the claimant was able to work. It concluded: “•He is not off work but has arranged to go to India on 6 December for further assessment of his back.• He has ongoing back problems and this has resulted in some time off because of pain.• He is fit to drive as he continues to manage with pain and without pain medication”.[21]The following day on 5 December 2023, the claimant noticed on the DAS-Web system that he was on the rota, and it did not show him as on leave. He went into SU’s office and queried this with SU. SU told him that the leave was not authorised. The claimant told SU that he still wanted to go because it related to his health. The claimant’s evidence was that SU said words to the effect of “Do as you please” (C/20) (141).[22]The claimant was annoyed that he was not informed his leave was refused before he noticed that he was on the rota. However, SU had only received the OH report the day before and manages about 200 staff. Even if he had told the claimant when he received the report on 4 December, the claimant, as he conceded in evidence, had already booked his flight. The claimant’s absence[23]On 6 December 2023 the claimant travelled to India as planned.[24]On 7 December 2023 SU tried to contact the claimant by telephone. The claimant noticed he had got a missed call from SU, and emailed SU to say that he was out of the country (page 122-A).[25]On 11 December 2023 SU emailed the claimant requesting his return to work as soon as possible (123): “I informed you on the 5/12 that your 5 week leave has not been authorised and you have stated that you will be going to India without authorisation.” The email also stated that if there was some other reason or a personal problem preventing the claimant attending work he should let them know and it gave a phone number and email.[26]On 13 December 2023 the claimant replied (124) saying that SU had told him “verbally that my leave was not authorized” but went on to say : “Please let me know on which date you sent your email to me, to let me know that my health leave wasn’t unauthorized (sic)”.[27]That was a rhetorical question. The claimant knew that his leave was not authorised and he knew that there was not an email. He was making the point that he had not been informed in writing.[28]On 18 December 2023 SU sent a further letter by email asking the claimant to attend a meeting on Friday 23 December (it was intended to be Friday 22 December) (128). The email stated: “If I do not hear from you or you fail to attend... it will be reasonable for me to believe that you are no longer interested in continuing your employment... with the company”. The disciplinary procedure[29]On 22 December 2023 the respondent sent an email to the claimant requesting attendance at a disciplinary hearing on 27 December 2023. It warned that a potential outcome was summary dismissal and informed him there was a right to be accompanied. It stated that if he did not attend it may proceed in his absence. It attached the Attendance and Disciplinary Policy (130 to 131).[30]On 23 December 2023 the claimant replied that he would not be attending “due to my ongoing medical commitments”. He requested a postponement until he returned. He said he was receiving treatment until mid-January 2024 but did not give a specific date when he would return (132 to 133). ML decided to proceed in his absence.[31]Although the disciplinary policy states that a hearing will be reconvened in 5 days where an employee fails to attend the hearing (41) ML did not apply that provision. In evidence she said that was because they were following the Attendance policy and had already sent 3 letters. In any event, even if they had scheduled another meeting in five days’ time, that would have not made any difference because the claimant was not anticipating being back until midJanuary and he had not given them a date when he was coming back.[32]The disciplinary hearing took place on 27 December 2023. ML decided to dismiss the claimant without notice. The disciplinary outcome letter (135 to 136) set out her reasons for the decision: “•You have been absent from work without any authorisation for a total of 21 days. You made decision to leave the work without managerial authorisation.• We have written to you on three separate occasions asking you to make contact and return to work as soon as possible on 11th Dec, 18th Dec and 22nd Dec.• The financial impact on the Company caused by your Unauthorised absence.” It gave a right of appeal.[33]On 29 December 2022 the claimant appealed (137). On 18 January 2024 the appeal took place. It was rescheduled from 11 January 2024 at the claimant’s request (138 to 139). The appeal hearing was chaired by Alan Shellard-Dedman (ASD). The claimant was able to attend, he was back from India and his union representative attended (140 to 146).[34]ASD checked that the claimant had understood the procedure for requesting leave and the consequences of taking unauthorised leave (142). He said: “When requesting leave do you understand there is no guarantee of leave being granted and that prior to any leave request being authorised staffing levels need to be checked to she how many people are already on leave and whether we have sufficient staff work to be able to provide a service to the public.”[35]The claimant replied, “Yes sir, but it is regarding my health”. ASD asked him what he thought the consequences would be of him going on leave even though it was not authorised and the claimant replied “For a disciplinary” but stated that he did not know what the outcome of that disciplinary would be.[36]The claimant asked ASD to take into consideration that he had previously asked for flexible working for his back problem (144).[37]ASD adjourned to consider his decision (from 10.28am to 2.24pm). In that time he decided to uphold the decision that the claimant’s actions amounted to gross misconduct (146). He then adjourned again having discussed the history of the claimant’s application to work part-time to consider what the appropriate sanction should be (146). He investigated by speaking to SU and JG (148).[38]He concluded that the claimant, having been offered shifts on Fridays and Saturdays rather than his preferred days of Monday and Tuesday, had not followed up on his original request to work part time (148). In the appeal outcome letter dated 12 February 2024 (147-149) he says: “Whilst I have not been able to find any record of this conversation so I can’t confirm what was said or agreed to, I did speak with Jacob Gluchowski and he said he was not aware of you raising this again and believe that you had changed your mind and decided to remain working full-time.”[39]The letter gave reasons for his decision that the claimant’s actions amounted to gross misconduct (148) “...you should not have made any travel arrangements until such time as the leave had been authorised.... Therefore, based on the above and along with your own admission that you knew that the leave had not been authorised but that you decided to go anyway, I am satisfied that the case of gross misconduct for being absent from work without any authorisaton from 6th December 2023 was proven.”[40]ASD separately considered the sanction. He noted that the claimant had the option of treatment in the UK through the NHS, he had a physio appointment on 27 November 2024, and he had been offered support with Back in Action (a service provided by the respondent). ASD took into account the impact on other employees; it was a popular time of year to request time off and a busy time for the respondent. The bundle contained evidence of other employees having been refused holiday for the same period (68 to 72). There are examples of other employees being refused even though they had made requests as far back as 10 May 2023, 19 September 2023 and 10 October 2023.[41]ASD decided that the sanction of dismissal without notice was the correct decision (149). The respondent’s disciplinary and attendance policies[42]The respondent applied a combination of their Attendance and their Disciplinary Policy when making the decision to dismiss. ML explained in evidence that the respondent has a practice in the case of unauthorised leave of sending two letters requesting that the employee come back to work followed by a third letter convening the disciplinary hearing.[43]The claimant was aware of the Attendance and Disciplinary policies. He acknowledged that they were on the rack in reception, they were online from 2022, and they had been referred to when his previous disciplinaries about attendance had taken place.[44]The respondent’s disciplinary policy lists unauthorised absence as an example of gross misconduct (36): “• Failing to attend work or follow the correct absence reporting process resulting in continued unauthorised absence (ie. being AWOL).”[45]It refers to potential investigations before any disciplinary action is taken (38): “Depending on the circumstances of the case the employee may be invited to attend a fact-find or investigatory meeting and be given the opportunity to state his/her case”.[46]The Attendance policy sets out the procedure for requesting annual leave (61): “Requests for annual leave should be submitted by DasWeb.... Annual leave is granted at management’s discretion and is not guaranteed, so approval must be sought before any bookings are made”.[47]The Attendance policy defines unauthorised absence (59): “ If an employee fails to attend work and has not followed the reporting procedure as outlined in this policy, or if they have not provided a medical certificate to cover their period of absence, their absence will be classed as unauthorised absence. The manager will make every attempt to contact the employee to discuss their unauthorised absence. Continued unauthorised absence is an act of gross misconduct and may result in summary dismissal. “
Law
[48]An employee’s right not to be unfairly dismissed is set out in section 94 of the Employment Rights Act (ERA) 1996. Section 98(1) ERA 1996 provides that it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal. Section 98(2) provides that conduct is a potentially fair reason for dismissal.[49]In misconduct cases guidance was set out by the Employment Appeal Tribunal (EAT) in British Home Stores Ltd v Burchell 1980 ICR 303, EAT. A three-fold test applies. The employer must show that: 1) It believed the employee guilty of misconduct 2) It had in mind reasonable grounds upon which to sustain that belief, and 3) At the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances. The burden of proof rests with the employer for the first ground but it is neutral for grounds 2 and 3. The employer need not have conclusive direct proof of the employee’s misconduct, only a genuine and reasonable belief. Reasonableness is neutral test.[50]When assessing whether the Burchell test has been met, the tribunal must ask itself whether what occurred fell within the ‘range of reasonable responses’ of a reasonable employer. The Court of Appeal has held that the ‘range of reasonable responses’ test applies in a conduct case both to the decision to dismiss and to the procedure by which that decision was reached. In J Sainsbury plc v Hitt 2003 ICR 111, CA, the Court found that a tribunal had substituted its own decision as to whether an investigation into alleged misconduct was reasonable. This was an error of law. The relevant question was whether it was an investigation that fell within the range of reasonable responses that a reasonable employer might have adopted.[51]In a case where the tribunal decides that there has been an unfair procedure the employer is unable to argue that even if it had followed a fair procedure, it still would have dismissed the employee. This was established by the House of Lords in Polkey v AE Dayton Services Ltd 1988 ICR 142, HL, However, the issue of whether a failure to follow a proper procedure made any difference to the decision to dismiss could be taken into account when calculating the compensatory award at the remedies stage. A tribunal may reduce such an award proportionately to the chance that the employee would have been fairly dismissed in any event had a proper procedure been complied with.[52]The ACAS code of practice on grievance and disciplinary procedures sets out guidance for the conducting disciplinary investigations and meetings. It provides that tribunals can take the size and resources of an employer into account and it may sometimes not be practicable for all employers to take all of the steps set out in the Code.[53]The following provision at paragraph 5 of the Code is relevant: It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.[54]Where a claimant admits wrongdoing the EAT has given guidance on the scope of the investigation. In CRO Ports London Ltd v Wiltshire EAT 0344/14 the claimant admitted responsibility for an accident. The EAT stressed that where the grounds relied on by the employer to justify dismissal include the employee’s admission of misconduct, the question is whether the employer acted within the range of reasonable responses in limiting the scope of its investigation in the light of those admissions.[55]The Acas Code states that the employer’s disciplinary rules should give examples of what the employer regards as gross misconduct, i.e. conduct that it considers serious enough to justify summary dismissal. A failure to list a type of act as gross misconduct may mean that the employer cannot rely on it to dismiss summarily (Basildon Academies v Amadi and anor EAT 0343/14). In Hewston v Ofsted 2025 EWCA Civ 250, CA, the importance of forewarning employees of the types of conduct that might attract dismissal was emphasised, particularly for a single offence, either through a clear disciplinary policy or through guidance and training.
Conclusions
[56]The respondent asserts that the reason for dismissal was the potentially fair reason of conduct. I need to decide whether the respondent genuinely believed that the claimant had committed misconduct. Did they have reasonable grounds for their belief at the time the belief was formed? Did they carry out a reasonable investigation and did they act in a procedurally fair manner?[57]I have decided that the respondent believed on reasonable grounds that the claimant was guilty of gross misconduct. It was very clearly set out in the disciplinary policy that unauthorised absence constituted gross misconduct. The claimant understood what unauthorised absence was and he understood that his absence at this time was unauthorised. He had asked for leave but it had not been granted. He booked his flight to India knowing that was the case (141). In the appeal he had confirmed that he had understood there was no guarantee of leave being granted (142).[58]The respondent carried out a reasonable investigation in that they wrote to the claimant and gave him a chance to explain. It was sufficient for the investigation itself to be relatively limited because it was quite clear that the claimant had booked his flight knowing that the leave had not been authorised.[59]The claimant has not sought to argue that he was dismissed on the grounds of capability and, based on the Occupational Health report saying that the claimant was capable of work, the respondent could be reasonably satisfied that his absence was not because of capability. The respondent obtained the Occupational Health report before the claimant’s leave commenced to exclude sickness as the reason for needing time off.[60]I found that the procedure the respondent followed was fair and complied with the ACAS code. The claimant knew the case against him. He was given the right to be accompanied and a right of appeal. Although he did not attend the first disciplinary he was able to attend the appeal and he was able to set out his case fully. The minutes show that ASD gave the matter very serious consideration and revisited both whether the conduct was gross misconduct and the sanction to be applied.[61]I find that the categorisaton of the conduct as gross misconduct and the sanction itself was within the range of reasonable responses of a reasonable employer. It is reasonable for the respondent to enforce an attendance policy because they are a customer service business, and it is necessary in order to manage the service to the public.[62]The claimant had 2 previous warnings about unauthorised absence and one warning was still in force. However, even if it was a first offence, the extent and the length of the absence meant that the sanction was within the range of reasonable responses.[63]Accordingly, I find that the respondent has acted within the range of reasonable responses in all respects and the claimant was not unfairly dismissed. Approved by: