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On Yer Bike!

Where a member of the public acts unreasonably, can this justify an employee’s misconduct? This was considered in a recent unfair dismissal case involving a bus driver who collided with a cyclist, where the cyclist was to blame for the accident.

Beech v Lothian Buses Ltd

The Claimant was employed by Lothian Buses Ltd as a bus driver from September 2008 until his dismissal in September 2019.

On 21 September 2019, the Claimant was driving a double decker bus at night when a cyclist collided with the bus, hitting the outside wing mirror. The Claimant had not seen the cyclist prior to pulling away from the bus stop. The Claimant used his horn and the cyclist proceeded to pull in front of the bus, make obscene gestures and use foul language towards the claimant. The bus then hit the cyclist, causing him to fall off. The cyclist was not wearing any reflective clothing or a helmet and also had no lights.

The Claimant called Lothian’s control room and the emergency services immediately. A number of passengers disembarked and at least one passenger provided assistance to the cyclist until the emergency services arrived. The Claimant stayed on the bus for nine minutes before disembarking. He then took pictures of the bike before checking on the cyclist’s welfare.  The cyclist was taken to hospital and the Claimant returned to the depot before ending his shift early and going home.

An accident report was completed with input from the Claimant. On 23 September 2019, an investigatory meeting was held where the Claimant was informed that he was to be suspended for careless and reckless driving pending further investigation.

Following a disciplinary hearing on 27 September 2019 the Claimant was dismissed for gross misconduct on the grounds that he should have seen this cyclist and reacted accordingly and that his failure to do so amounted to gross misconduct. The Claimant had maintained that it was the cyclists fault and that the cyclist was under the influence of alcohol.

On 4 October 2019 the Claimant appealed the decision on the grounds that the decision was too harsh and that he should not have lost his job for this incident. He felt that no one had listened to his story, that the cyclist involved did not have any lights on and was under the influence of alcohol. The police by this point had also stated that the Claimant was not blameworthy for the accident; however, the decision to dismiss was upheld.

The Claimant proceeded to bring a claim for unfair dismissal.

Decision

The Employment Tribunal had some concerns in relation to the investigation undertaken by the Respondent. In particular, it was critical of the Respondent failing to wait for the police report or indeed take steps to contact the police as part of the investigation. The Respondent also failed to interview any other witnesses. The Respondent disputed that the cyclist was under the influence seemingly without any basis for doing so – in fact the evidence supported the Claimant on this.

Nevertheless, the Tribunal accepted that the Respondent had reviewed extensive CCTV footage. Each of the Respondent’s witnesses believed the cyclist’s conduct to been entirely unacceptable but said the Claimant should have responded to the incident by coming to a stop as soon as he was aware that there was a hazard on the road, rather than accelerating towards the hazard.

On balance the Tribunal found that the investigation had been reasonable and that based on that investigation the dismissing manager had a genuine belief that the Claimant had acted in a dangerous and unacceptable manner.  Given the nature of the Claimant’s duties where he worked unsupervised and was required to ensure the safety of passengers and other road users, his dismissal fell within the range of reasonable responses available to Lothian and was therefore fair.

Comment

This case serves as a good example for employers that any investigation must be reasonable in all the circumstances of the case.  The investigation is, in many ways, the most important part of any disciplinary process – if the investigation is defective it is difficult for an employer to show that the decision to dismiss was reasonable.

Ultimately on the facts the tribunal found in Lothian’s favour, primarily because the decision to dismiss flowed from the CCTV footage and other evidence was ancillary but employers should be careful not to dismiss evidence out of hand. Often it is better for an employer to consider evidence and discount it.

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