Employment Judge SmailMr Saeed (instructed by Solicitor) for claimantMr P Mills (instructed by Solicitor) for respondentDate 15 May 2018
JUDGMENT
[1]The claimant’s claim of unfair dismissal fails and is dismissed.
REASONS
[1]By a claim form presented on 17 March 2017, the claimant claims unfair dismissal. He was employed by the respondent as a bus driver based at the Hayes Depot. His length of service was 16 March 2013 to 22 November 2016. He was dismissed on 22 November 2016 with notice for misconduct. The misconduct involved allegedly twice not servicing the first bus stop on route 350 at Heathrow Terminal 5 Bus Station. Both incidents had generated customer complaints.[2]The claimant went into the disciplinary hearing on 22 November 2016 under a live final written warning from 7 June 2016. He had been given a final written warning, as confirmed on appeal for using a mobile phone while sitting in the cab with his engine on. He did so to report an accident. He did not report the accident immediately, he did so three stops down the line. He was criticised for that also.[3]On appeal Jacinta Faley expressed the view that the claimant was lucky not to have been dismissed, because there was a zero tolerance of drivers using mobile phones in the cab. They are allowed to stop the bus, switch it off and go outside to use their phones, but the claimant did not do this on that occasion.[4]The original final written warning and the dismissal were both the decisions of the Operations Manager at Hayes, Marta Leszczynska. At the time of the final written warning the claimant was subject to a first written warning confirmed on 4 September 2015, also issued by Ms Leszczynska. The claimant had failed to extend the ramp on his vehicle to allow a wheelchair user to get off. The written warning was to stay on the file for 12 months. Much of the hearing focused upon the validity of the final written warning. There were essentially two challenges made to it.[5]First, that it was unclear that the claimant actually had an accident when he had used a mobile phone to report it. The claimant certainly reported a collision, an actual physical collision - the report was before the tribunal - so it is difficult to see where that point was going. Furthermore, the final written warning, certainly as confirmed on appeal, related to use of the mobile phone in the cab.[6]Secondly, it is said that there was an outstanding appeal against the first warning. It is accepted by the respondent that an appeal had been set up in respect of the first warning and certainly there is no record of the appeal being determined one way or the other. However, the claimant did not take the point that the first warning was subject to an outstanding appeal at the disciplinary hearing, resulting in the final written warning. Jacinta Faley examined this matter and indeed made enquiries of the Union, who confirmed that they had not been instructed to pursue an appeal against the first warning. So, if at one point the claimant had been minded to appeal the first warning, he did not see that process through and he did not raise that matter at the relevant time, which was at the disciplinary hearing for the first written warning. He did raise it on appeal and his position was rejected on grounds open to her by Jacinta Foley.[7]The purpose behind the challenge to the final written warning, of course, was that if the final written warning should not have been in place, then the claimant could not have been dismissed, he could have been disciplined, but not dismissed for the Terminal 5 matters. However, the challenge to the final written warning fails for those two reasons. First of all, he did report a collision; secondly, he did not pursue an appeal against the final written warning. If he raised it, he let it lapse and did not pursue it at the crucial time.[8]Accordingly, the claimant went in to the disciplinary hearing on 22 November 2016 with a valid live final written warning.[9]CCTV was observed at the disciplinary hearing, as it was on appeal, and as it has been after some technical hitches here in the tribunal. There are two relevant rules under TfL’s rules for all bus drivers as set out in the Red Book. Every bus stop has to be serviced, that is to say the bus has to stop unless the bus driver is sure that no-one wants to get on or off. The position is more complicated in respect of bus stops known as white stops - there are white stops and red stops. At a white stop the bus is supposed to stop in any event. That is not expressly stated in the TfL Red Book, but is, I accept, one of the respondent’s rules and was known to the Claimant. This bus stop in question, which is the first on the route at the Terminal 5 Bus Station is a white stop, meaning that the bus driver has got to serve the bus and stop at it. This makes sense when one thinks about it. The bus otherwise is parked on the stand when the driver is not necessarily in attendance. When the driver arrives he gets in to the bus, he is meant to move off the stand and drive slowly to the first bus stop, this being Terminal 5 of course, which is likely to be busy. There are no set times in terms of a timetable. However, there is this rule, I find, which is that that driver has got to stop at the first stop. This was known to the Claimant.[10]CCTV plainly shows on both the occasions that we are concerned with that the claimant did not do this and for that alone he is in breach of the rules. The two occasions we are looking at are 11 August 2016 at 15:26 and 22 September 2016 at 11:51. However, the position is aggravated on these occasions because the respondent fairly formed the view that the claimant could not reasonably think that no passenger wanted to get on the bus. He could not from what is to be seen on the CCTV reasonably form such a view. There is some evidence on CCTV that he looked on both occasions at and around the bus stop, but that does not mean to say that he formed the view, certainly not reasonably, that no-one wanted to use the bus.[11]On the first occasion there was no bus in front of him on the stop. Three routes use this stop and there were three people sat on the bench which serves this bus stop. It may be that the bench is not as close to the bus stop as benches are for example in a bus shelter, but the bench in question was the bench for this bus stop and three people were sat on it. The respondent reasonably believed in any event that the claimant should have stopped at the bus stop, but in addition there were actual passengers and as he drove passed the bench, one such passenger stood up in such a way as to suggest surprise that the bus was disappearing.[12]The second incident is a little different in that there was a bus in front of the claimant. He started an over-taking manoeuvre of that bus as that bus was in fact moving off. When the Claimant first got in to the bus there were passengers waiting to get in to the bus that was loading in front and then subsequently moved off. There was at least one person waiting in the vicinity of the bus stop, intending to use the claimant’s bus and that person can be seen walking towards the bus stop as the claimant moved off. On that occasion also, the claimant had no reasonable grounds to think that noone wanted to use his bus. It was Ms Leszczynska’s interpretation of the CCTV that the claimant had no intention, on both occasions, of stopping at the bus stop. It seems to me that was a reasonable conclusion for her to draw. So, there were two breaches of the rules: first of all, he should have stopped in any event; and secondly, he should have stopped on both occasions because there was at least one passenger who wanted to get on to the bus at this the first stop on the 350 route. The Law - Unfair dismissal[13]The tribunal has to have regard to section 98 of the Employment Rights Act 1996, by section 98 subsection 1, it is for the employer to show the reason or if more than one, the principal reason for the dismissal. A reason relating to the conduct of an employee is a potentially fair reason by section 98 subsection 4 where the employer fulfilled the requirements of subsection 1, the determination of the question whether the dismissal is fair or unfair having regards to the reasons shown by the employer a) depends on whether in the circumstances included 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. This has been interpreted by the seminal case of British Home Stores v Burchell 1978 IRLR379EAT as involving the following questions: a) Was there a genuine belief in misconduct? b) Were there reasonable grounds for that belief? c) Was there a fair investigation and procedure? d) Was dismissal a reasonable sanction open to a reasonable employer?[14]I have reminded myself the guidance in Sainsburys Supermarkets v Hitt 2003 IRLR23 Court of Appeal, that at all stages of the enquiry the tribunal is not to substitute its own view for what should have happened, but judge the employer as against the standards of a reasonable employer, bearing in mind there may be a band of reasonable response. This develops from the guidance given in Iceland Frozen Food v James 1982 IRLR 439 EAT to the effect that the starting point should always be the words of section 98 subsection 4 themselves, that in applying this section, an Employment Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they, the Employment Tribunal, consider the dismissal to be fair. In judging the reasonableness of the employer’s conduct, an Employment Tribunal must not substitute its decision as to what was the right course of that of the employer. In many, but not in all cases, there is a band of reasonable responses to the employee’s conduct, which one employer might reasonably take one view, whilst another quite reasonably takes another. The function of the Employment Tribunal is to determine whether in the particular circumstances of each 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 is outside the band it is unfair.
Conclusions
[15]It is clear that misconduct was the reason for dismissal. The respondent had a reasonable belief in that there were two breaches. First, the claimant did not stop at a white bus stop; and secondly, he did not stop when there were passengers plainly wanting to use the bus or at least he had no grounds for thinking there were no passengers who wanted to board his bus. There were reasonable grounds and there was a fair investigation in the circumstances. The CCTV told the story. The claimant went in to that disciplinary hearing with a valid final written warning. The CCTV proved the most recent acts of misconduct. Was it reasonable to dismiss in all the circumstances of the case? While Ms Leszczynska pointed to the fact that there was a history of warnings, she said at the end of her dismissal letter dated 28 November 2016, “Complaints from passengers have an effect on our business and can affect tender awards when TfL are making decisions. You ignored all chances given and you have not improved your standards of performance. Due to this and the live award of the final written warning from 7 June 2016, I made my decision to terminate your contract.” Mr McGuinness on appeal says much the same thing in his appeal letter in December 2016.[16]In my judgment the respondent shows it had reasonable grounds for terminating the claimant’s employment. There was a sequence of warnings, displaying, in relation to a number of incidents of misconduct, a pattern of behaviour for which the claimant could reasonably have been dismissed. I do point out however, this is not and is not suggested to be gross misconduct. This is instead a series of incidents of misconduct, not gross misconduct, but sufficient to justify dismissal after warnings. Accordingly, the claimant’s claim for unfair dismissal fails.[17]I would like to add one footnote which relates to the fact that it appeared that on 12 October 2016, the claimant resigned following these incidents. It seems that a message was communicated to him through his Union from the Supervisor Raj Chada that the claimant resign or be dismissed. He chose momentarily to resign and then very swiftly thereafter asked for his resignation to be withdrawn. Rightly the respondent agreed to this and then dealt with the matter appropriately. Mr Chada’s behaviour here seems questionable and that had that resignation stood and had there been a preliminary issue as to whether there was a genuine resignation or a dismissal, it seems to me perfectly possible that the tribunal would have concluded that it was not a genuine resignation, but a pressured one. However, and rightly so, the respondent allowed the claimant to withdraw his resignation and the matter was then dealt with appropriately.[18]That incident of resignation and the circumstances around it does not therefore relevantly impact on the fairness of the eventual dismissal.