Bus driver wrongfully sacked – but not unfairly

The case of a bus driver who was accused of using a mobile phone whilst driving has succeeded in a wrongful dismissal claim, but lost his unfair dismissal claim, in a case that highlights the different legal issues that dismissal can throw up.

The employee was at the wheel of a London bus when his general manager happened to drive past, and said that she saw him using his phone. He denied the claim but was found guilty of gross misconduct after a disciplinary process and was dismissed without notice.

His complaints of wrongful dismissal (his notice pay) and unfair dismissal (loss of his job) were upheld in full by an Employment Tribunal (ET) which specifically found that he had not committed the misconduct alleged and that his dismissal was therefore outside the range of reasonable responses open to his employer.

The ET found a number of flaws in the investigation carried out by employer and noted in particular that it had reached its conclusions without waiting to see the driver’s phone records. Those records subsequently showed that there had been no outgoing messages from the phone at the relevant time. That wouldn’t necessarily show that he wasn’t using the phone, but it would have given a fuller picture.

In ruling on the bus company’s appeal, the Employment Appeal Tribunal (EAT) found that the ET had fallen into the error of substituting its own view of the facts for that of the employer, so finding the dismissal unfair wasn’t sustainable. The finding of unfair dismissal was therefore overturned and the issue sent back to a fresh ET for reconsideration.

However, the EAT upheld finding of wrongful dismissal. This is based on the actual facts of the case, and unless the employer proves that the misconduct happened, the claim for wrongful dismissal (notice pay) will succeed. However, even if the employee had not been proven to have actually been on his phone, a dismissal might still be fair if the employer has a reasonable belief in the employee’s misconduct, a reasonable investigation and the decision itself was reasonable at the time that it was made. The bus driver may find that he ends up vindicated in terms of his notice pay, but fairly sacked for something a Tribunal concludes that he did not, in fact, do.

This is a case which underlined the importance of fair and thorough disciplinary procedures in the workplace, clients should contact Deminos for advice on investigating and dismissing fairly.

If you have any questions about these cases, or any matters relating to them, contact your Deminos advisor on: 020 7870 1090.

Author chris swindells

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