Mr Mark MacDonald v Transport UK London Bus Ltd — 2024

Mr Mark MacDonald worked for Transport UK London Bus Ltd as a Taxi Controller from 5 January 2021 until his dismissal on 4 September 2023. The case arose from a complaint by a colleague on the night shift of 24/25 July 2023 alleging that Mr MacDonald had left his desk, gone to lie on a sofa, and appeared to be asleep or ignoring attempts to rouse him while the shift was busy. He was suspended on allegations of falling asleep whilst on duty, later invited to a disciplinary hearing on allegations of an unauthorised break, failure to fulfil nightshift duties and breach of the Code of Conduct, and was summarily dismissed for gross misconduct after the disciplinary and appeal hearings.

The tribunal directed itself to section 98 Employment Rights Act 1996 and referred to Burchell, Hitt, Gravett and Iceland Frozen Foods. It found that the respondent had shown misconduct as the reason for dismissal and that the investigation was reasonable in the circumstances. Ms Clark interviewed relevant witnesses and reviewed call records, the Freedom system, IT support information and other records; at appeal, Mr Lamont also checked the claimant's emails, VOIP records and CCTV, none of which assisted the claimant. The tribunal accepted that there had been an error in Mr Akbar's first suspension letter, but found this did not disadvantage Mr MacDonald because he had a fair opportunity to understand and answer the allegations.

On the facts, the tribunal found there were reasonable grounds to uphold all three allegations. It accepted that the claimant had been away from his desk for a prolonged period between about 01:30 and 04:00, that he had been lying on the sofa with earbuds in, and that his colleagues could not get his attention. Even though Mr Bowen did not make a definitive finding that Mr MacDonald was asleep, the tribunal held that it was reasonable to conclude he may have been asleep or, if not, that he had at least failed to remain alert and responsive to colleagues and clients. The tribunal therefore held that the dismissal fell within the band of reasonable responses and was fair.

Because the unfair dismissal claim failed, the tribunal dismissed the case in full and no remedy was awarded. The claimant had sought reinstatement if successful, but that did not arise once the tribunal found the dismissal fair.