Tayside Public Transportcompany Limited (t/a Travel Dundee) V. James Reilly
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Drummond Young,Lord Justice Clerk |
| Neutral Citation | [2012] CSIH 46 |
| Court | Court of Session |
| Published date | 30 May 2012 |
| Docket Number | XA132/11 |
| Date | 30 May 2012 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lady Paton Lord Drummond Young | [2012] CSIH 46 XA132/11 OPINION OF THE LORD JUSTICE CLERK in the Appeal from the Employment Appeal Tribunal by TAYSIDE PUBLIC TRANSPORT COMPANY LIMITED (t/a TRAVEL DUNDEE) Appellant; against JAMES REILLY Respondent: _______ |
For the appellant: Hay; Biggart Baillie LLP (for Ford & Warren, Leeds)
For the respondent: Cameron; Balfour and Manson LLP (for Muir Myles Laverty, Dundee)30 May 2012
Introduction
[1] The respondent has lodged a claim with the Employment Tribunal (ET) that he was unfairly dismissed by the appellant. On 4 August 2010, at a Pre-Hearing Review at Dundee, Employment Judge Hendry struck out the claim on the ground that it had no reasonable prospect of success.
[2] The respondent appealed to the Employment Appeal Tribunal (EAT). On 27 May 2011 Lady Smith allowed the appeal and remitted the claim to the ET for a full hearing. On 28 July 2011 she refused leave to appeal to this court. On 2 December 2011 this court granted the appellant's unopposed motion for leave to appeal.
The facts
[3] The respondent was employed as a bus driver by the appellant. He had a good work record. On 21 November 2009, he set off in a double-decker bus on a route from Ninewells Hospital, Dundee to Tesco. Since part of the normal route had been closed off, he had to take a diversion within the hospital grounds. He took the wrong diversion. The bus collided with an overhead pedestrian walkway. The top of the bus was sheared off. No one was injured.
[4] In his incident report the respondent said that he had thought that he was following the correct diversion. It was raining heavily. He was driving at around 25mph.
[5] The appellant's health and safety co-ordinator, Ms Jo Burnett, conducted an investigation. She reported that the correct details for the diversion were on the running board of the bus; that is to say in a document setting out the route that the driver was to follow. On the approach to the walkway there were signs warning drivers of the maximum height; pedestrian and ambulance hazard signs and chains hanging from a gantry. Cctv footage of the incident suggested that the windscreen wipers of the bus were not switched on before the accident. When interviewed by Ms Burnett the respondent said that he did not think that the diversion description was on the running board. He said that the roads were wet. It was raining heavily. Visibility was impaired. He had driven the route before. He was travelling at about 20 mph. Ms Burnett had evidence that when the bus was checked after the accident, the diversion notice was on the running board; and that there was a 15 mph speed limit within the hospital grounds.
The disciplinary proceedings
[6] The appellant's disciplinary policy provides for dismissal for gross misconduct for inter alia "causing, by negligence to duty, a serious blameworthy accident which results in damage to persons, property, vehicles, plant or equipment, etc."
[7] On 1 December 2009 there was a disciplinary hearing. The respondent was present with his trade union representative. The investigating officer's report was read over together with the statements of certain employees. The respondent told the hearing that he could not recall having seen the diversion notice on the running board. He thought that the route of the diversion was not clear. He had not heard the chains hit the roof of the bus. He said that a relief driver had told him that the route that he followed was the correct one.
[8] The appellant's operations manager gave the decision of the disciplinary hearing there and then. He said that the respondent had caused a blameworthy accident. He failed to follow the correct diversion. He should have checked the running board. His speed had contributed to the accident. He had failed to follow the warning signs. He was therefore to be dismissed for gross misconduct.
[9] On 10 December 2009 the respondent's internal appeal against dismissal was refused.
The claim before the ET
[10] The respondent claims that the disciplinary procedure was unfair; that before the disciplinary hearing he was not given notice of the evidence against him, and that matters raised at the hearing were not followed up. He avers that in any event he was not guilty of an act of gross misconduct. The accident occurred because he was not properly advised about the change of route. The appellant had wrongly based its decision to dismiss on the value of the damage to the bus. Furthermore it had been comparatively lenient in its treatment of other employees who had had accidents or had engaged in unsafe driving (Appendix, pp 6-7).
The test for unfair dismissal
[11] Where a former employee alleges that he has been unfairly dismissed, the question
"(a) depends on whether in the circumstances (including 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." (Employment Rights Act 1996, s 98(4)).
[12] The ET should not substitute its view on the point for that of the employer. Instead, it should consider whether the employer's decision was within the range of reasonable responses to the employee's conduct (Foley v Post Office [2000] ICR 1283).
The test for striking out
[13] Rule 18(7)(b) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI No 1861) entitles the Employment Tribunal to strike out a claim if "it has no reasonable prospect of success."
The Pre-Hearing review
[14] The hearing before Employment Judge Hendry was conducted by reference to certain productions and without oral evidence.
[15] As part of his case the respondent's solicitor relied on a precognition of John Brown, another bus driver. The precognition was to the effect that on the day before the accident Mr Brown drove a single deck bus by the route that the respondent took. He was told on the internal radio to take that route. On the same day he handed over the bus to the respondent. He told the respondent what route to take. The accident occurred only because on the following day the respondent was put on the same route but with a double-decker bus. Mr Brown said that he told the investigating officer about this, but that what he said was ignored.
[16] The respondent's solicitor submitted there were factual disputes that could be resolved only after a full hearing. There was a dispute as to whether the speed was excessive and as to the adequacy of the information given to the respondent about the diversion. The respondent had not been told before the disciplinary hearing that he could be dismissed. He had not been forewarned of any specific allegation regarding speed, failure to see signs or failure to read information about the diversion.
[17] The appellant's solicitor submitted that the appellant had an honest belief, held on reasonable grounds and after an extensive investigation, that the respondent had committed gross misconduct (British Home Stores v Burchell [1980] ICR 303). Dismissal was within the range of reasonable responses open to the appellant. It was not for the ET to substitute its own view. The accident had cost the appellant about £60,000.
The decision of the ET
[18] The Employment Judge gave his decision on the day. In his written reasons dated 30 August 2010, he observed that the background facts to the case, which he then set out (paras 4-29) were relatively straightforward (para 3). After recording the parties' submissions he discussed the merits of...
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