Mr A Boksh v Abellio London Limited — 2021

The claimant was dismissed without notice after failing to report an incident involving a near miss or possible contact with a third party vehicle while driving a bus. The tribunal found the respondent had a conduct reason for dismissal and had carried out a reasonably fair investigation, including proceeding without photographs and not checking the bus for damage in circumstances where the collision allegation had been dropped.

The tribunal found that it was reasonable to conclude there had been a near miss that ought to have been reported. However, it found that failure to report a near miss could not reasonably be treated as gross misconduct under the respondent's policies, which referred to failure to report a collision or injury. The disciplinary decision-maker did not properly consider mitigation including the claimant's clean disciplinary record, length of service, previous reporting of incidents, and his indication that he would report such incidents in future.

The appeal did not cure those failings because the appeal officer also treated failure to report a near miss as gross misconduct and did not properly consider whether dismissal was too severe. The tribunal concluded that dismissal was outside the band of reasonable responses and was both procedurally and substantively unfair. It made no Polkey reduction, but found contributory fault and directed that any compensatory award be reduced by 10%, with remedy and reinstatement to be determined at a later hearing.