Mr D McDonald v London General Transport Services Ltd: 6010448/2024 Mr D McDonald v London General Transport Services Ltd: 6010448/2024
EMPLOYMENT TRIBUNALS
Case No 6010448/2024
Between
Mr D McDonaldClaimantLondon General Transport Services LtdRespondent
Before
Employment Judge AtkinsMr J Fireman (instructed by Counsel) for claimantMr I McCabe (instructed by Counsel) for respondentDate 25 July 2025
REASONS
[1]The Claimant claims that he was unfairly dismissed. That is the only claim he makes. Procedure, documents, and evidence heard[2]I have seen a bundle paginated to 152 pages.[3]The Claimant provided a witness and gave oral evidence on his own behalf.[4]The following witnesses provided statements and gave oral evidence on behalf of the Respondent:(a) Mr Bradley, who made the decision to dismiss the Claimant, and(b) Mr Faithfull, who determined the Claimant’s appeal against dismissal.[5]In making this decision, I have taken account of all of the evidence before me, even if I have not mentioned any specific part of it. Fact
Findings
[6]The facts of the claim are relatively simple and uncontroversial. They can be set out as follows.[7]The Claimant is a bus driver who was employed by the Respondent. He has extensive service for the Respondent (and for predecessor companies from whom the Claimant’s employment was transferred), totalling 32 years. He had not taken a single day of absence in the 3 years prior to the events of 2023.[8]The Respondent is a large company providing bus services in London under contract to Trasport for London. They employ around 7,500 people and run around 2,450 buses on various bus routes. They are based at several locations in London. They are the largest company providing bus services in London.[9]The Claimant felt chest pain and shortness of breath on 29 November 2023 and called in sick. On 30 November 2023 he informed the Respondent that he was in hospital having a cardiac pacemaker fitted. The operation took place on 1 December 2023. He was fitted with a pacemaker and prescribed medication for his blood pressure. He was understandably in no fit state to return to work in the days following the operation.[10]The Claimant subsequently provided a series of sick notes which ran up to 10 April 2024. He had a number of sickness absence meetings with his managers (on 2 January 2024, 27 February 2024, and 2 April 2024).[11]The letters sent to the Claimant to notify him of those meetings:(a) did alert the Claimant that the Respondent would consider alternative work if he was unable to perform his normal duties;(b) did not say that the Claimant was at risk of dismissal; and(c) did not fix a date by which he should return to work or face dismissal (as was required by the Respondent’s policy for staff on long term sick leave).[12]Mr Johnson says that he did write to the Claimant in both January and February 2024 to notify him that dismissal was a possibility if he could not return to work within a reasonable time. Mr Johnson admits that these letters and are not in the bundle. He says that they have gone astray.[13]The Claimant was referred to Occupational Health on 4 January 2024. On 16 January 2024, the Claimant had an Occupational Health assessment via telephone. The report of Dr Iqbal, the R’s medical adviser, says that:(a) The Claimant was currently unfit for all duties.(b) The Claimant has informed the DVLA of his surgery.(c) The Claimant “can return to work when he receives written confirmation from the DVLA that he is fit to continue to hold a PVC licence”.(d) The DVLA will request a report from the Claimant’s cardiologist, and the process can take 2 to 3 months.(e) The Claimant may be fit for alternative (non-driving) work if he can produce a fit note from his GP “confirming he is fit for amended work”.[14]It was understood between the parties that when a full time driver has a significant medical intervention (such as the Claimant having a cardiac pacemaker fitted) the DVLA would need to be notified. The DVLA would then contact the relevant medical professionals providing care for the driver, to ensure that the medical professionals no concerns about the driver resuming driving. This process could take some time. It might be possible to accelerate it by(1) contacting the relevant medical professionals to encourage them to respond to the DVLA,(2) contacting the DVLA to ask for a swift response.[15]Mr Johnson said that the Respondent had a policy of not allowing drivers to drive a bus until the Respondent had received notification from the DVLA that the DVLA had no concerns about the driver continuing to drive. This was because of safety concerns. The Respondent was responsible for the safety of drivers, passengers, other road users and the general public. The potential for harm to any and all of these from an unsafe driver was huge. The policy was therefore deliberately restrictive in nature, to reduce that risk to the minimum.[16]On 9 March 2024 the Claimant received a letter from the DVLA which said(a) the DVLA are considering whether he was fit to drive;(b) the DVLA have written to his cardiologist “to ensure that they do not have any concerns that your medical condition affects your ability to safely control your vehicle at all times”;(c) as soon as they have received this information from his cariologist they will write to him with an update on further progress;(d) and: “In the mean time, you may continue driving as long as:• you can fully meet the medical standards of driving – your doctor will be able to advise you of this• you only drive the types of vehicle your licence allows you to drive• you drive with any restrictions or adaptations that are specified on your licence”[17]It is not contested that the Claimant at all times had a valid licence to drive.[18]On 3 April 2024 the Claimant’s GP wrote to him and said: “[The Claimant] has received a letter from the DVLA informing him that he may continue to drive as long as he fully meets the medical standard of driving following his pacemaker insertion on 1/12/23. From my assessment of the patient and the medical notes, I believe that he meets the medical standard and is fit to drive. The DVLA are writing to [the Claimant’s] cardiologist to see if they have any concerns”[19]On 9 April 2024 the Claimant had an Occupational Health assessment with Dr Iqbal, who said in an email:(a) In response to being asked whether the Claimant could come back to work, said “No”.(b) That “it is company policy that he cannot drive a bus until the DVLA confirm in writing that they have completed their enquiries and that he is fit to continue to hold a PCV licence”.(c) That “I have previously stated that he is fit for alternative duties”, such as driving a ferry vehicle.[20]On 10 April 2024 the Claimant had a sickness absence meeting with Mr Johnson. Mr Johnson says that the Claimant:(a) was informed of Dr Iqbal’s email;(b) confirmed that he was not fit to drive at that time of for the foreseeable future; and(c) was shown a list of alternative roles and was not interested, and instead agreed there were no suitable vacancies.[21]The Claimant does not agree that he was told about alternative vacancies. He was not shown a list. He was only told about one alternative role, driving a shuttle bus, for which there were no current vacancies.[22]The Claimant was informed by the Respondent that there were no suitable alternative vacancies. He was dismissed with pay in lieu of notice. He was told that he would be re-employed on his current grade if he was fit to drive at any point within the next 12 months, but without other service related benefits. Mr Johnson and Mr Faithful agreed that these included the starting date of service and a TfL pass. It was not clear whether this also included entitlement to sickness pay. Mr Johnson felt that the Claimant would be reinstated on the same conditions as he was previously, other than the date of service and TfL pass. It was not clear whether the date of service would affect entitlement to sickness pay or any other benefits. Common sense dictates that some benefits will have been lost as a result of such a significant change.[23]The Claimant says that there was no contemporaneous record of the meeting, and no notes had been produced. I disagree. There was a contemporaneous record of events on the day; the letter that was written the same day. It was open to the Claimant to draw to the Respondent’s attention any points that were incorrectly recorded or that he felt had been missed. He did not do so.[24]On 15 April 2024 the Claimant appealed. His letter says: “I am writing to appeal the decision made to terminate my contract on the grounds of capability (ill health). I am appealing on the grounds of breach of procedure, as I object the terms of my re-employment within 12 months, but with no other service benefits.”[25]The Claimant says that ‘procedural error’ covers a number of issues, including his dismissal. The Respondent’s view is that his appeal was limited to the terms of re-employment only; he did not challenge the dismissal.[26]The Claimant had an appeal hearing on 16 April 2024 with Mr Faithfull. He was accompanied this time by a union representative, a full time representative from Unite. The notes, and Mr Faithfull’s evidence, consistently say that:(a) The Claimant said that that the DVLA “are still investigating in liaison with my consultant. There are no restrictions on my driving licence”.(b) The Claimant said that he “put breach of procedure on my form. I had concerns with [Mr Bradley’s] letter, in the second to last paragraph. He said he would re-employ me if I can return within 12 months, giving me my current pay grade. I was not happy with no other service-related benefits being included.” He said that this was because the break in employment was not his fault.(c) Mr Faithfull offered to restore holiday, sick pay and safe driving service benefits if the Claimant returned within 12 months and then completed a 6 month probationary period.(d) Mr Faithfull offered to fast track his return as soon as the DVLA had given confirmation in writing.[27]It is clear from the notes of the appeal that the Claimant did not make any points about:(a) His being fit to drive from 3 April 2024, as he claimed to have done.(b) Whether further time should have been given to him to recover, as he claimed to have done.(c) His dismissal itself.(d) Any defects in the process such as a lack of either a return to work date or a notification of the possibility of dismissal.(e) Whether he should have been found an alternative role.[28]Everything the Claimant said was about the proposed terms of reengagement. He did not mention his dismissal at all.[29]The notes of the hearing also show that the Claimant said that “the pacemaker is not helping me much with my breathing”. After being offered a fast-tracked return on the terms set out above, the Claimant said: “To be honest, I am not sure what will happen, my health must come first. I am 62 this year. I wanted to have this in place, thank you.”[30]The Claimant was asked about this during cross examination. He was initially unwilling to reply, saying that he did not want to talk about his health, and I had to remind him he was under oath. In his subsequent answer he did not say anything about his breathing, but instead said that at the time he had not yet got used to his pacemaker and its constant presence in his body.[31]The Claimant has not challenged the accuracy of the note of hearing.[32]On 21 April 2024 Mr Faithfull wrote to the Claimant to formally offer him a return to his current grade if he returned within 12 months and passed a PVC medical, plus a restoration of his sick pay and safe driving benefits after a probation period of 6 months from the date of return.[33]The letter did not mention the dismissal. In oral evidence Mr Faithfull was clear that he did not consider the dismissal itself, because it did not form part of the appeal. Mr Faithfull’s view was that the appeal was solely concerned with the terms of potential re-employment.[34]The case was referred to ACAS on 22 June 2024. ACAS issued their certificate on 3 August 2024. The claim was received on 3 September 2024.[35]While the matter was in ACAS, the DVLA wrote to the Claimant on 9 July 2024. They said that they were still awaiting information from the Claimant’s cardiologist. The Claimant says that this is the last communication that he had from the DVLA. It follows that he has not had confirmation from the DVLA that they have no concerns about his ability to safely control his vehicle or fitness to drive. Submissions[36]Mr McCabe submitted that the Claimant’s dismissal was fair because:(a) The Respondent did not, and does not, accept that the Claimant was fit to drive on 3 April 2024.(b) The Respondent does not accept that here was any defect in procedure. The Claimant was an experienced trade union representative and knew both how dismissal procedures work and what was happening in his own case.(c) The Respondent requires written confirmation from the DVLA that the Claimant was fit to drive before he could return to work. That confirmation from the DVLA was not provided and has not been provided. This requirement was reasonable and had been put in place for reasons of safety, which must be paramount.(d) At the point of dismissal, the Respondent had waited for 4½ months for the Claimant to be certified fit to drive by the DVLA, he had not been, and there was no certainty about when the Claimant would be certified as fit to drive by the DVLA. Capability dismissal was a reasonable response in those circumstances.(e) The Respondent did consider alternative roles, and there were no suitable ones.[37]Mr Fireman says that his dismissal was unfair because:(a) As at 3 April 2024 the Claimant was fit to drive and could have returned to work. There was no legal prohibition on his driving a bus. He had a valid licence and had provided the GP note. He accordingly met all of the criteria specified by the DVLA for continuing to drive.(b) The Respondent did not follow the correct procedure. The Claimant was not notified of either a return to work or of the possibility of dismissal.(c) The Respondent did not wait for the DVLA to finish their investigation before making the decision to dismiss him. It would have been reasonable to afford him more time. Dismissal was premature and unfair.(d) The Respondent did not find him a suitable alternative role. The Respondent is a large company and could afford to do so. Dismissal was premature and unfair. Findings[38]The Claimant has argued that there was a defect in in the procedure that was followed, and the Respondent disagrees,[39]I have considered whether the Claimant was warned that he faced dismissal either because he did not return to work prior to a specified return to work date, or at all, before the meeting of 14 April 2024.[40]I am satisfied that he was not. The notification letters in the bundle do not contain any such warning. There are no other letters which do – those which Mr Johnson says that he sent are not there, and there is no explanation why not. It is for the Respondent to show that they gave the Claimant that warning. They have not done so.[41]It is the case that the Claimant was an experienced trade union representative. The Respondent says that this counterbalances any defect in procedure. I disagree. The process is put in place to respect the rights of all employees, regardless of their state of knowledge. The Claimant was not forewarned of the possibility of dismissal. The Respondent had the ample opportunity to do so, and it did not do so.[42]It follows that I am satisfied that there was an error of procedure, in that the proper procedure was not followed.[43]I have considered whether Claimant was offered an alternative role. Mr Johnson says that he went through a list and the Claimant was not interested in alternative roles, or did not feel any alternative roles were suitable. The Claimant says that he was not taken through a list, and only told about one vacancy. It is clear from the Claimant’s evidence, and I am satisfied, that alternative roles were explored, even at minimum in a perfunctory way.[44]I have considered whether the Claimant acquiesced in his dismissal. It is correct that his letter of appeal said that he was appealing the decision to dismiss him, and that procedural error can cover a variety of terms. But the only error actually identified by the Claimant, in his appeal letter and at the hearing, was to do with the proposed terms of re-engagement. He did not take any point on the dismissal at all, whether the decision itself, the process, whether more time would be reasonable, or whether an alternative role should have been found. He had the opportunity to do so, and was supported by a trade union representative who could have assisted him to do so. But he did not do so.[45]I also note that by the time of the appeal hearing the Claimant was still unwell. He said that he had difficulty breathing and was unused to his pacemaker. He said that he was uncertain about the future and said his health must come first. When giving oral evidence the Claimant was reticent about giving evidence on the subject of his health, from which I draw an inference that the Claimant was aware it would not assist his case. Drawing all of this together, I find for these reasons that that the Claimant was not well enough at that point to return to work, that he was aware of that, and that he did not know when he would be.[46]I have considered the potential for the Claimant’s return to work at the point of dismissal. It may have been legally permissible to allow the Claimant to drive. The Respondent does not argue that it was not. Their position is that they had a policy in place, for reasons of safety, requiring written confirmation from the DVLA, that policy was reasonable, they followed it, and it was reasonable for them to do so.[47]I do not consider that it was unreasonable for the Respondent to have a policy of not allowing a driver to return to work until the DVLA have certified that they were content that the driver was fit to drive. This was not a legal requirement but something that the Respondent put in place as a matter of policy, with the understandable aim of preserving the safety of the driver, passengers, all other road users, and the general public.[48]The Claimant has said that the DVLA do not write to drivers confirming fitness to drive. I do not accept that – it is clear from the evidence of Mr Johnson and from the DVLA correspondence in the bundle that they do investigate, update drivers as to progress, and notify drivers of outcomes.[49]The DVLA had written to the Claimant to say that he could drive in accordance with his licence and if his GP provided a fit note. It was clear from their letter that their inquiries of the Claimant’s cardiologist were still continuing. Those inquiries were directed to the issue of whether the Claimant was safe to control his vehicle when driving following cardiac surgery. If the DVLA was ultimately satisfied about this issue they would have no reason to continue their inquiries. I find that their letter, despite being accompanied by a valid driving licence and a note from the GP, did not meet the requirements of the Respondent’s policy.[50]It was suggested during cross examination of Mr Johnson that the Respondent wishes to terminate the contract to save expense, although this was not put forward as a submission. There is no evidence to support any such finding and I reject this suggestion. The evidence is clear that the relationship between the Claimant and the Respondent was amicable and they offered him the option to return on generous terms.
The law
[51]No issue is taken to time. I considered the relevant time limits. I was satisfied that the case was brought in time – it was received within 1 month from the issue of the ACAS certificate, per section 111(2)(a) of the Employment Rights Act 1996 (“ERA”) as modified by section 207B(4).[52]Section 94(1) ERA provides that “An employee has the right not to be unfairly dismissed by their employer.”[53]The parties agreed that:(a) the Claimant was dismissed from employment;(b) the reason for dismissal was capability; and(c) that this was a potentially fair reason for dismissal within the meaning of section 98(2)(a) ERA.[54]The only issue for me to determine is whether the dismissal was fair within the meaning of section 98(4) ERA.[55]Section 98(4) ERA poses three questions for the Tribunal:(a) First, whether, in the circumstances, the Respondent acted reasonably or unreasonably.(b) Secondly, whether it was reasonable for the Respondent to dismiss the Claimant having regard to the size and administrative resources of the Respondent;(c) Thirdly, that whether it was reasonable to dismiss the Claimant “shall be determined in accordance with equity and the substantive merits of the case”.[56]In addressing this question, I am alert to two preliminary points:[57]First, I must not substitute my own view for that of the respondent. UCATT v Brain [1981] IRLR 224 says as follows: “Indeed this approach of Tribunals, putting themselves in the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, “Would a reasonable employer in those circumstances dismiss”, seems to me a very sensible approach – subject to one qualification alone, that they must not fall into the error of asking themselves the question “Would we dismiss”, because you sometimes have a situation in which one reasonable employer would and one would not.”[58]This approach has been maintained over the years in many decisions including Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 (reconfirmed in Midland Bank v Madden [2000] IRLR 288) and Sainsburys v Hitt [2003] IRLR 23. 21.2[59]Second, I am to apply what has been referred to as the ‘band’ or ‘range’ of reasonable responses approach to my assessment of whether I consider that the respondent did act reasonably in all the circumstances, per Iceland Frozen Foods, Post Office v Foley [2000] IRLR 827) and Graham v Secretary of State for Work and Pensions (Job Centre Plus) [2012] EWCA Civ 903. 22. These cases all confirm that in terms of section 98(4), the role of the Employment Tribunal is to apply the “band of reasonable responses” test and to ask itself whether this respondent acted in a way that no reasonable employer would act when faced with.[60]I take the questions posed by section 98(4) ERA in order[61]First, I do not consider it unreasonable per se that an employer would dismiss an employee for reasons of capability when:(a) Their capability had been adversely affected by a serious medical condition for 4½ months, was still adversely affected, and it was uncertain at the point of dismissal when they might be fit to return to work.(b) They had a reasonably policy requirement in place that, for reasons of public safety, an employee affected by such a serious medical condition could not return to work until the DVLA had certified them in writing as safe to drive.(c) The DVLA had not done so and so the employee was not able to return to work.(d) There was no certainly about when that confirmation from the DVLA might be forthcoming and the employee might be able to return to work.[62]The Claimant had a serious medical condition, it was still causing him difficulty at the time of dismissal, and he did not know when it would be resolved. I have found that at the time of dismissal – despite the position with the DVLA – the Claimant was not fit to return to work, and did not know when he would be well enough to return to work.[63]The Respondent had a policy in place, which I have found to be a reasonable policy driven by the overarching need for public safety, that a driver who had had a serious medical condition could not return to work until the DVLA had verified them fit to drive. The DVLA had not – their inquiries were continuing and unresolved. For the reasons I have given, I do not accept that the letters from the DVLA, even taken together with the Claimant’s driving licence and GP letter, fulfil the Respondent’s reasonable policy requirement. It follows that at the time of dismissal the Claimant could not return to work under the terms of the Respondent’s policy, and there was no indication when he might be able to meet that policy requirement and return to work.[64]In the circumstances, the Respondent had acted reasonably.[65]Second, it is clear that the Respondent had was not a small company, and had significant resources. I take into account that this does not necessarily mean that the Respondent was running to a tight budget. But I have not been shown any evidence to establish that even a tight budget would made it impossible for the Respondent to have taken more time before coming to a decision or to have made greater efforts to find an alternative role for the Claimant while he recovered. This does not establish of itself that the dismissal was unreasonable. But the Respondent cannot rely upon their size and resources in aid of showing that it was reasonable, and I take this into account below.[66]Third, in looking at the wider question of equity and the substantive merits of the case, I note that:(a) The Claimant had been absent for a long period, 4½ months.(b) The Claimant did not know, and there was no indication, when he might be well enough to return to work.(c) The Claimant did not know, and there was no indication, when he would be able to fulfil the requirements of the Respondent’s policy and be allowed to drive again.(d) The policy was reasonable and was put in place to safeguard public safety.(e) The DVLA’s inquiries had been going on for most of that time and there was no indication when they might end, or that they would result in the required certification.(f) The Respondent failed to follow its own procedure. However, to an extent that was acquiesced in by the Claimant. He could have raised points about procedural defects but did not do so.(g) The Respondent could have given more time to the Claimant before moving to make a decision about dismissal. However, to an extent that was acquiesced in by the Claimant. He could have raised points about insufficient time but did not do so.(h) The Respondent could have made greater efforts to find an alternative role for the Claimant. However, to an extent that was acquiesced in by the Claimant. He could have raised points about procedural defects but did not do so.(i) The Respondent could have paid greater attention to the Claimant’s record and length of service. However, to an extent that was acquiesced in by the Claimant. He could have raised points about these but did not do so.[67]In taking into account the defects I have identified within the Respondent’s procedure, I am mindful South London and Maudsley NHS Foundation Trust v Balogun [2014] UKEAT/0212/14/BA, which says “A procedural defect is a factor to be taken into account but the weight to be given to it depends on the circumstances and the mere fact that there has been a procedural defect should not lead to a decision that the dismissal was unfair. The fairness of the whole process needs to be looked at and any procedural issues considered together with the reason for the dismissal as the two will impact on each other.”[68]This was a finely balanced decision. I had to balance the unfairness of the process, which is a serious matter, with the other factors to make a decision as to whether it fell within the reasonable range of responses and was overall reasonable. It is correct that more time might have been allocated or greater efforts might have been made to find an alternative role. Both were within the Respondent’s gift. But on the other hand the Claimant had been off work for a long period of time, was not well enough to return to work, had not provided the necessary certification required to return to work, and there was no indication when he would be well enough to return or when (or if) he would be able to provide the necessary certification.[69]I have concluded that in these circumstances, while it may be seen to be a harsh decision, I am not convinced that dismissal falls outside the range of reasonable responses, or that (notwithstanding procedural defects) it was unreasonable. The defects in the process do not place the Respondent’s decision to dismiss the Claimant, who was unfit and unable to return to work without indication when he might be, outside the range of reasonable responses, or otherwise unreasonable.[70]For those reasons the Claimant’s claim must fail.