MR L WALKER v Rapt Dev Aspire Bournemouth Transport Limited — 2019

The claimant confirmed that he was bringing only an unfair dismissal claim. The respondent accepted that it had dismissed him and said the reason was misconduct, namely refusal to follow a lawful and reasonable instruction. The tribunal set out the issues under section 98 of the Employment Rights Act 1996 and the Burchell test: whether the decision-maker genuinely believed misconduct had occurred, whether that belief had reasonable grounds, and whether there had been a reasonable investigation.

The dismissal arose from the incident on 31 August 2018 when Mr Walker, while driving a bus, refused to continue the journey with a passenger's dog on board after Mr Bowen instructed him to drive on. The tribunal found that the dog was on a lead, that the supervisor did not find it aggressive, and that Mr Bowen concluded it was not dangerous and instructed the claimant to drive the bus. Mrs Marshall later treated the refusal to comply with that instruction, together with the claimant's stated position that he would make the same decision again in similar circumstances, as gross misconduct.

The tribunal accepted that there were reasonable grounds for Mrs Marshall's belief that the claimant had refused to comply with a reasonable and lawful order. It found that the CCTV footage showed the dog did not present a risk, that the investigation was sufficient, and that the disciplinary process was not unfair merely because it was conducted briskly. It also held that it was proper to take account of the claimant's final written warning, which had been issued on 3 August 2018 and had been appealed unsuccessfully, and it referred to the guidance in Wincanton Group plc v Stone and the range of reasonable responses test.

The appeal was found to be fair and independent, and it resulted in a slight reduction in sanction because the appeal officer concluded that the 31 August incident alone would not justify summary dismissal, but that dismissal with notice was justified once the existing final written warning was taken into account. The tribunal concluded that the decision to dismiss was not outside the band of reasonable responses and dismissed the unfair dismissal claim.

On costs, the respondent's application was dismissed. Although the respondent had pointed to witness evidence about an alleged delay of over an hour, the tribunal found that figure was inaccurate on the CCTV evidence and held that the claim did not have no reasonable prospect of success, so no costs order was made.