Ms M JAISINGH v Arriva London North Limited — 2019

The claimant, a bus driver employed by Arriva London North Limited since May 2005, brought a claim for unfair dismissal only. The respondent said she was dismissed for conduct on 13 June 2018, namely using a mobile phone while driving and failing to observe safety rules by passing through two red lights. The claimant argued that the real reason was personal animosity arising from earlier issues with managers, but the tribunal found no evidence that previous grievances or management animosity played any part in the dismissal. It found that the reason for dismissal was conduct.

The tribunal found that the respondent's investigation and procedure were within the band of reasonable responses, and no breach of the ACAS Code was identified. It also found that the respondent could reasonably conclude from CCTV that the claimant had her mobile phone in her hand momentarily as the bus moved, that the mobile phone policy was prominently displayed, and that the claimant had gone through two red lights. However, the tribunal held that the dismissal fell outside the band of reasonable responses because the respondent excluded the possibility that the claimant was genuinely concerned for her safety after a previous assault, reached an unsupported conclusion that she was the aggressor, did not address a grey area about using a mobile phone camera to take pictures in some circumstances, and did not properly consider her length of service and clean disciplinary record.

The appeal did not remedy those defects. The tribunal found that the appeal panel accepted an erroneous description that the bus was 40 to 50 car lengths from the lights when they turned amber, repeated the unsupported conclusion that the claimant was the aggressor, and referred to previous driving matters that had not been put to the claimant through a fair process.

The unfair dismissal claim was therefore successful. On contribution, the tribunal found the claimant's actions were blameworthy and culpable: she had her phone in her hand while the bus moved, creating a safety risk, and she drove through red lights, although the incidents involved judgement calls and the lights had only just turned red. Taking account of the grey area in the mobile phone policy, the claimant's previous assault, the lack of evidence that she was the aggressor, her long service and her clean disciplinary record, the tribunal held that her basic and compensatory unfair dismissal awards should be reduced by 85%. No monetary remedy was determined in this judgment, and the case was to be listed for a remedy hearing.