Mr K Appiah v Lea Interchange Bus Company Ltd T/a Stagecoach London: 6003209/2024
REASONS
[1]The Claimant was employed by the Respondent as a bus driver in London. He was dismissed on 6 March 2024. The Claimant presented an ET1 in time on 3 June 2024 claiming he was unfairly dismissed by the Respondent. The issues in the case[2]The right not to be unfairly dismissed is only available to those who have been continuously employed for at least two years or those dismissed for what are referred to as automatically unfair reasons. It was accepted that the Claimant had been continuously employed for at least two years and had been dismissed.[3]The Claimant’s case was that the Respondent’s decision to dismiss: a) did not fall within the band of reasonable responses given the Claimant’s mitigating circumstances; b) was not based on a reasonably fair procedure as the Claimant was not aware of the detail of the mobile phone policy that applied.[4]The Respondent’s position is that the only reason for dismissal was gross misconduct, that this was a reasonable decision and a fair process was allowed.The Hearing
[5]The hearing took place by CVP.[6]The parties had agreed and provided me with a bundle of 170 pages of documents.[7]During of the hearing the following witnesses gave evidence: a) Amir Shaikh – Garage Operations Manager and investigating office; and b) Angela Cook – Garage Operations Manager and decision maker to dismiss; and c) Darren Priestly Operations Manager and appointed to conduct the appeal; and d) the Claimant.[8]At the conclusion of hearing evidence, each party made oral submissions. I will not repeat those submissions but I am going to deal with the main points in my discussions and conclusions below.[9]After lunch break on day one of the hearing, the Claimant applied for permission for his friend and colleague, Mr Ali, to attend the hearing and give evidence. I refused this application and provided oral reasons during the hearing. Mr Ali attended the disciplinary and appeal hearing with the Claimant. The Claimant explained that he could provide me with evidence of what happened. The Respondent objected to such a late application, particularly as the Respondent’s witnesses had all given evidence and no-one had a witness statement from Mr Ali.[10]I considered the overriding objective and did not allow the Claimant’s application. As will be clear below, there was minimal factual dispute between the parties. Allowing Mr Ali to give evidence at this point without having provided a witness statement in advance would potentially mean that the Respondent’s witnesses would need to be recalled. The real issue in the case was whether it was reasonable for the Respondent to dismiss the Claimant given his mitigating circumstances and his lack of knowledge about the detail of the applicable policy. Mr Ali’s evidence would not be crucial to these two points.[11]Therefore, it was not in accordance with overriding objective to allow the application as it would cause potential additional expense, delay and be disproportionate to the issues.[12]As will be seen below, the Claimant had resigned during the investigation and then retracted his resignation. The Respondent was not disputing that the Claimant had two years continuous service. However, as this is relevant to the Tribunal’s jurisdiction to determine the Claimant’s claim I considered whether the Claimant did in fact have the required continuous service or whether the resignation constituted a break in service.[13]I decided that the claimant did have continuous service in accordance with the Employment Protection (Continuity of Employment) Regulations 1996, regulation 2(d) and regulation 3 which state that where there has been a relevant settlement agreement the employee’s continuity of employment is protected. I consider a sensible interpretation is that the acceptance of the Claimant’s retraction of resignation was a settlement agreement in relation to the issue of whether or not the Claimant was pressured to resign (which was his reasoning for seeking a retraction of his resignation) and in effect constructively dismissed.Findings of fact
[14]When setting out my findings of fact, I will not set out the entirety of the evidence that I heard but will highlight the parts of the evidence necessary for me to make a decision and which seemed the most important. The majority of facts were agreed. Relevant conduct[15]A complaint from a passenger about the Claimant’s driving on 18 January 2024 prompted the Respondent to investigate. On viewing the CCTV, the Respondent noted a number of incidents of poor driving, including the Claimant picking up his mobile phone, taking both hands off the steering wheel to zip up his jacket and reading his duty card all whilst the bus was in motion, amongst other instances of driving with one hand. Subject to limited disputes detailed below, the Claimant did not dispute the Respondent’s account of their interpretation of what they witnessed on the CCTV footage.[16]The complaint from the passenger was not upheld and so the was not considered as part of the disciplinary process. Investigation[17]An investigation was conducted by Mr Shaikh. Mr Shaikh viewed the CCTV and noted the incidents as detailed above. He then held a fact finding interview and the Claimant attended with his union representative. The Claimant stated he was simply moving his mobile phone to avoid it from falling. The Claimant did not consider this was using his mobile phone.[18]Mr Shaikh decided that there was a disciplinary case for the Claimant to answer. He suspended the Claimant and gave the Claimant a letter confirming his suspension, as well as explaining it to him on the day.[19]A disciplinary hearing was started by Mr Lathey, but not concluded, on 6 February 2024. During the hearing, the Claimant had the same union representative in attendance. On asserting that picking up the mobile phone was a one off incident, Mr Lathey agreed to view the CCTV footage for a period before and after the incident to establish if that was correct. On viewing the CCTV footage, Mr Lathey saw the Claimant urinate in a bottle whilst the vehicle was in motion and then throw the urine out of the window.[20]Mr Lathey informed the Claimant that this would need to be considered as part of the disciplinary matter. The Claimant and his union representative asked for a break and, on returning, the Claimant resigned. The Claimant asserted that his union representative and Mr Lathey pressured him to resign however, that was not relevant to the Claimant’s claim for unfair dismissal and so no factual findings are made in relation to this.[21]On 21 February 2024, the Claimant emailed the Respondent and asked for his resignation to be retracted. Ms Cook accepted that retraction on the basis that the disciplinary process would continue but without reference to the urination matter. She did not consider that it was fair to pursue this matter given it had arisen on the Claimant’s request to view additional footage. Disciplinary hearing and decision to dismiss[22]A disciplinary hearing was held by Ms Cook on 5 to 6 March 2024 to consider the following allegations: a) Breach of mobile phone policy; b) Failing to driver to the required standards resulting in poor driving standards; and c) Continuous poor driving performance.[23]A colleague of the claimant, Mr Ali, attended in support of the claimant at his request. Mr Ali, on the Claimant’s behalf, accepted that his driving was ‘a little poor’, asked for leniency, said that the bus had not been travelling at any speed when this happened and suggested additional training could be arranged as maybe the Claimant had fallen into some bad habits over the years. Mr Ali suggested that the Claimant needed to be educated on the policy as he was not aware of it. Mr Ali also suggested he knew of two other drivers who had touched their phones whilst driving but no action had been taken by their managers. Ms Cook spoke to these managers who informed her they were not aware of these incidents.[24]In relation to allegations 2 and 3, Ms Cook decided that a final written warning was sufficient. She was concerned with his poor driving, particularly as he was on a written warning for poor driving standards issued within the previous 12 months. In relation to picking up his mobile phone, Ms Cook decided that this was gross misconduct and dismissal without notice was appropriate.[25]There was a factual dispute about what the Claimant was doing with his mobile phone when he picked it up. Mr Shaikh gave evidence that the Claimant stated he had moved the mobile phone to prevent it from falling. Ms Cook gave evidence that the Claimant told her he picked it up to look at the time. The Claimant said he was concerned he was late and that the wayfarer, which tells the time, was incorrect. The Claimant repeated this account during the hearing. The Claimant has consistently said that he was not using his phone as he was only holding, or moving, it.[26]Ms Cook gave evidence that on looking at the CCTV footage it appeared to her that the screen of the phone had lit up, suggesting a call had been incoming. She recognised this was denied by the Claimant but discounted his account as the records showed the bus was not late and there was no evidence the wayfarer was incorrect or the Claimant had reason to believe it was incorrect.[27]I find that a reasonable manager could certainly have come to the conclusion that the Claimant was not simply picking up the mobile phone to look at the time. Ms Cook gave consistent evidence. The Claimant accepted having a good working relationship with her and that she had ‘no axe to grind’ against him. The Claimant however gave inconsistent evidence on this as he had said he was moving it to ensure it didn’t fall during the fact finding meeting with Mr Shaikh. In any event, even on the Claimant’s account, he had picked up his mobile phone to look at it whilst the bus was in motion. On the Claimant’s account, he was using it to look at the time.[28]Returning to the disciplinary matter, Ms Cook took the following steps, either before or during the disciplinary hearing: a) She took over and conducted the hearing instead of Mr Lathey who heard the first, incomplete, disciplinary hearing; b) Decided not to pursue the urination in the bottle matter; c) To accept your retraction of your earlier resignation; d) Making it clear she would not consider the third allegation, driving to continuous poor standard, as gross misconduct. The policies issue[29]A key issue in this case is the reasonableness of the Respondent applying a particular mobile phone policy.[30]The Claimant was originally employed by Tower Transit until there was a transfer to the Respondent. As a result of this transfer, there was a new Stagecoach mobile phone policy implemented. The Claimant gave evidence that he was aware that he could not use a mobile phone, which is set out in the Tower Transit mobile phone policy. However, the Claimant stated that he was not aware of the Stagecoach mobile phone policy.[31]I was provided with a copy of two policies. The Tower Transit policy states that mobile phones cannot be used while driving a vehicle, whether hand held or hands free and that failure to comply with this will be regarded as gross misconduct. The Stagecoach policy provides more explicit detail. It bans visible presence of the mobile phone when driving or the engine is running, stating this will be taken as an intention to use it and disciplinary action will result, including summary dismissal.[32]The Respondent’s evidence, and all of the Respondent’s witnesses were consistent on this, was that the Stagecoach policy is readily accessible to employees. Union representatives were made aware of the new policies in May 2023. I was shown photographs of a lever arch file containing Stagecoach policies in the depot and of a notice board where notices are placed, including of the Stagecoach mobile phone policy. It is also posted on ‘blink’, the company intranet.[33]The Claimant stated that he only accessed blink to look at his payslips and duty slots as this is what he is interested in. He also stated he would not look at a policy unless he actually needed it. The Claimant made the point, which was accepted by the Respondent, that he had not signed the policy to confirm he understood it.[34]The Respondent did not provide direct evidence that the Claimant had read and understood the content of the Stagecoach mobile phone policy, however that is not the issue in the case. The relevant issue is whether the policy was reasonably accessible. However, I accept that a reasonable employer could conclude it was and so that they could apply the policy because it was available both in hardcopy at the depot and via ‘blink’. The appeal process[35]The Claimant appealed against the decision to dismiss. Mr Priestley was appointed to determine the appeal and held the appeal hearing on 20 March 2024.[36]The Claimant had Mr Ali attend to support him during the appeal process. Mr Priestley upheld the decision to dismiss. The parties position on the decision to dismiss[37]The main challenge the Claimant makes is that the decision was unreasonable as it was too harsh. During the hearing he made the following points in relation to this: a) That he has been a loyal employee, working for 9 years with good attendance and punctuality; b) That he has a family, a wife and children and the impact of dismissal is severe on his personal circumstances; c) That the incident was a one off, for a short period only and he was driving slowly, approximately 3 miles per hour because of the traffic; d) That he was not aware of the Stagecoach policy in place at the time but rather thought that a policy from Tower Transit still applied; e) That he was acting in accordance with the Tower Transit policy as he was not using his phone.[38]The respondent’s position can be summarised as follows: a) That they must send a clear message that they will not tolerate their drivers using their mobile phones whilst driving. This is because bus drivers have responsibility for the lives of their passengers, other road users and the public whilst driving; Accidents can happen when drivers are even just momentarily distracted with catastrophic consequences; b) That they made the Stagecoach policy reasonably accessible to the Claimant but, in any event, the Tower Transit policy states clearly that drivers must not use their mobile phones when driving. The Claimant was in breach of the Tower Transit policy as well as the Stagecoach policy; c) That they did consider the Claimant’s mitigation and that nothing happened due to his actions; d) That this was a reasonable decision. Ms Cook and Mr Priestley had no axe to grind. The Respondent had been reasonable as evidence by accepting the Claimant’s retraction of his resignation and decided not to pursue disciplinary proceedings for the urination in his bottle issue. There was no evidence of any procedural or substantive unfairness. The relevant law Relevant statutory provisionsThe relevant law
[39]By section 94 Employment Rights Act 1996 (“ERA”) an employee has the right not to be unfairly dismissed.[40]In a claim for unfair dismissal, the employer must show the reasons (or, if more than one, the principal reason) for the dismissal, and that it is a potentially fair reason (section 98(1) ERA). Potentially fair reasons are set out in section 98(1)(b) and section 98(2) of the ERA and includes reasons relating to the conduct of the employee (section 98(2)(b) ERA).[41]The burden of proof is on the Respondent to show the reason for the dismissal was misconduct. If the Respondent establishes that the reason for dismissal is misconduct, the second part of the test is to consider the reasonableness of the decision. The test is neutral, meaning that the burden to establish this is not on the Claimant or Respondent, but is for the Tribunal to determine (Boys and Girls Welfare Society v McDonald [1996] IRLR 129.).[42]In doing so, the Tribunal must have regard to the circumstances of the case, including the size and administrative resources of the employer’s undertaking and the equity and substantial merits of the case (s.98(4) ERA). Relevant case law[43]Where the reason, or principal reason, for the dismissal is conduct then it will usually be necessary to have regard for the guidance set out in British Home Stores Ltd v Burchell [1978] IRLR 379, which lays down a three-stage test:(i) the employer must establish that he genuinely did believe that the employee was guilty of the misconduct;(ii) that belief must have been formed on reasonable grounds; and(iii) the employer must have investigated the matter reasonably.[44]The burden of proof is on the Respondent on point (i) (which goes to the reason for the dismissal) but it is neutral on the other two points.[45]In applying section 98(4) ERA, the correct test is whether the employer acted reasonably, not whether the tribunal would have come to the same decision itself. In many cases there will be a 'range of reasonable responses', so that, provided that the employer acted as a reasonable employer could have acted, the dismissal will be fair: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439. That test recognises that two employers faced with the same circumstances may arrive at different decisions, but both of those decisions might be reasonable. In considering the fairness of a dismissal, the Tribunal should also consider whether an employer has complied with its own internal policies and procedures. A failure to follow those procedures may make a dismissal unfair, on the basis that any reasonable employer will generally adhere to its own published procedures (Sinclair v Wandsworth Council LBC [2007] 11 WLUK 80).[46]In relation to accessibility of policies, employers must make notes about disciplinary procedures reasonably accessible in accordance with section 3 of the Employment Rights Act 1996.Conclusions
[47]Applying the above legal principles to this case, the first question I have answer is whether the Respondent has discharged the burden of establishing that reason, or principal reason, for the dismissal of the Claimant was misconduct. The Claimant did not put forward a case that the Respondent did not dismiss for reasons of misconduct, but that the decision to dismiss was unreasonable. In these circumstances and in light of the clear and consistent evidence of the Respondent witnesses, I have decided that the Respondent did dismiss for reason of misconduct.[48]I now need to consider the reasonableness of the decision in accordance with the questions in paragraph 45 above. Did the Respondent investigate the matter reasonably?[49]I will deal with this matter first as the decision maker would not have reasonable grounds for a belief until the matter has been investigated reasonably.[50]The Claimant’s main complaint about the investigation process was that the Respondent was applying the Stagecoach policy. The Respondent’s position is that the policy was made reasonably accessible to the Claimant and that the investigation was fair.[51]The fact that the Claimant was not aware of the details of the new policy is irrelevant and does not make the decision to dismiss unreasonable. I find that the Respondent made the policy reasonably accessible for the following reasons: a) It was available on blink, their intranet; b) It was available in hardcopy in the depot and on a notice board.[52]It was therefore reasonable for the Respondent to apply the policy. The claimant cannot rely on his lack of engagement with the company policies to establish that the decision was unreasonable.[53]Furthermore, the Claimant was a bus driver. It is a criminal offence to use and hold a phone whilst a vehicle is in motion. It is reasonable to expect the Claimant to understand that he cannot be even picking up his mobile phone to check the time, or for any other reason, whilst the vehicle was in motion. This is particularly so as the Claimant accepted in evidence catastrophic accidents can happen in the briefest of moments when driving a bus.[54]Finally, the old policy stated that using a mobile phone whilst the bus is in motion is gross misconduct. The Respondent was acting in line with both the old and new policy.[55]The Claimant asserted that the decision was inconsistent with other decisions whereby bus drivers were not dismissed for similar matters. I had no evidence before me of any decisions inconsistent with that but note that at page 102 of the bundle in an email from Mr Ali he states that in the Tower Transit days a couple of bus drivers were not dismissed. No detail was given. I do not find this relevant, it is perfectly appropriate for a company to tighten up procedures even in circumstances where there had not been a TUPE transfer. Historic decisions not to dismiss do not mean that this decision was unreasonable. Furthermore, Ms Cook spoke to the two managers Mr Ali told her had not disciplined bus drivers in similar circumstances and they were not aware of such incidents.[56]The Claimant also pointed out that he did not receive notes of the appeal hearing. Mr Priestly gave evidence that he took his own notes and the content of them was reflected in the appeal letter. I accept Mr Priestley's evidence as the appeal letter is thorough and there is no evidence or reason to decide against that. Furthermore, this in itself would not amount to a procedural defect outside of the range of reasonable responses to make the dismissal procedurally unfair.[57]The claimant asserts that both Ms Cook and Mr Priestly failed to consider relevant evidence, as detailed above. However, both Ms Cook and Mr Priestly gave evidence that they did. Both the disciplinary and appeal outcome letters refer to his previous record. I also note that a decision to dismiss in these circumstances even with an entirely exemplary record could not be said to be an unreasonable decision. I accept that the respondent considered all relevant information.[58]Finally, whilst these matters were not pursued at the hearing, in the claimant’s ET1 he alleges that the decision was pre-determined and that he was not given sufficient information about his suspension. I find no evidence that the decisions were predetermined and the letter dated 29 January 2024 provides the reason for the suspension, namely breach of mobile phone policy. Did the Respondent establish that he genuinely did believe that the Claimant was guilty of the misconduct[59]The Claimant did not assert that the Respondent did not genuinely believe that the Claimant was guilty of misconduct, just that the decision to dismiss was not within the range of reasonable responses due to the mitigating factors he advanced.[60]There is no evidence to suggest that the Respondent did not genuinely believe the Claimant was guilty of misconduct. They had clear evidence the Claimant picked up his phone to look at it whilst the bus was in motion and their policy makes it clear that this is gross misconduct. Therefore, I decide that the Respondent did establish that they genuinely believed the Claimant was guilty of misconduct. Did the Respondent form the belief on reasonable grounds?[61]The belief was formed based on a reasonable investigation in the circumstances, which included viewing CCTV. The Claimant was invited to a fact-finding meeting and attended with the support of a union representative. The Claimant was invited to the disciplinary meeting and attended with the support of a colleague and friend. The Claimant was given an appeal opportunity, which he took and a fair appeal process was followed.[62]Therefore, the reasonable belief was formed on the basis of reasonable grounds. Was the outcome reasonable?[63]I then need to consider whether the decision to dismiss the Claimant was a reasonable one for the Respondent to make. I am not considering what outcome I would have reached in these circumstances, I am deciding whether the dismissal fell within a range of reasonable responses, both procedurally and substantively.[64]The main challenge the claimant makes is that the decision was unreasonable as it was too harsh for the reasons set out in paragraph 38.[65]I find that the decision to dismiss without notice was a reasonable decision. The Claimant accepted that momentary distraction can lead to catastrophic consequences when driving a bus and that accidents can happen in split seconds. He also accepted he has the lives of passengers and others in his responsibility when driving. This was a sensible acceptance. It is entirely reasonable for an employer to dismiss a bus driver who has used their mobile phones whilst in control of a bus.[66]Furthermore, I also accept that picking up a mobile phone, to either check the time or look to see after there was some sort of alert or incoming call, is using the mobile phone.[67]Finally, I note that the respondent’s decisions in relation to allegations 2 and 3. These were entirely fair to the claimant and not indicative of an unreasonable employer making unreasonable decisions.[68]Therefore I find that the complaint of unfair dismissal is not well founded and the claim is dismissed.