Mr A Hoque v Tower Transit Operations Ltd — 2021

Mr A Hoque, a bus driver, was dismissed after a 9 July 2019 altercation with a passenger at Bow Church. The respondent investigated the incident through fact-finding meetings, CCTV review, witness statements and a disciplinary hearing before Stephen Riggans, with the appeal heard by Sam Greaves. The tribunal recorded that the claimant had been trained to stay in the cab and use the code red procedure if faced with aggression, and it accepted that the dismissal decision was based on the respondent's belief that he had engaged in violent conduct.

On the unfair dismissal claim, the tribunal applied section 98(4) ERA 1996 and the Burchell test, together with the range of reasonable responses approach. It held that the respondent had reasonable grounds for its conclusion, that the investigation was reasonable, and that the CCTV clearly showed the claimant opening the cab door, punching the passenger and later kicking out as the passenger was being removed. The tribunal rejected the claimant's self-defence case, accepted that the additional witness interviews that were not undertaken were not required for a reasonable investigation, and held that the claimant had been given a fair chance to comment on the CCTV and the other material. The tribunal also held that Stephen Riggans was entitled to take account of the claimant's behaviour towards Dr Barthes-Wilson when assessing whether he could trust the claimant in future, because that was used as part of the sanction assessment rather than as a separate disciplinary allegation.

The tribunal dismissed the wrongful dismissal/notice pay claim on the basis that the claimant's conduct amounted to a serious breach of contract and gross misconduct, so the respondent was entitled to dismiss him without notice. In the appeal, Sam Greaves reviewed the same material, considered the claimant's length of service and the earlier warning, and upheld the dismissal. The tribunal therefore found the overall process and decision fell within a band of reasonable responses.

On the wages issue, the tribunal found that the respondent had incorrectly withheld contractual sick pay from 13 August 2019 to 22 September 2019. It accepted that the claimant had medical certificates covering the relevant period and that the respondent had made an error about his entitlement under the Stagecoach terms and conditions, which provided for 26 weeks full pay and 26 weeks half pay. The tribunal was not satisfied that the respondent had proved deception or any other basis for withholding the pay, and it awarded £1,971.91 gross, being the difference between contractual sick pay of £539.52 per week and SSP of £94.25 per week for 31 days. The separate contractual sick-pay claim under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 succeeded, but no additional remedy was made because the same amount was awarded on the statutory unlawful deduction claim; the tribunal noted that pension adjustments would need to be made when the sick pay was paid.