ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: S/4100557/2017 Issued Following Open Preliminary Hearing Held at Edinburgh on the th of September 2017 at pm Employment Judge: J G d’Inverno, QVRM, TD, VR, WS (Sitting Alone) Mr J Black v Fife Scottish Omnibuses Ltd — 2017

At the open preliminary hearing on 11 September 2017, Employment Judge J G d'Inverno considered documentary evidence, agreed facts and submissions on the respondent's application for a deposit order. The issue before the tribunal was the claimant's allegation that his summary dismissal fell outside the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The judge was not satisfied, at that stage in the proceedings and before oral evidence, that the allegation had little reasonable prospect of success, and the respondent's application for a deposit order was refused.

The judgment records agreed admissions for the purposes of the final hearing. These included that the claimant answered his mobile telephone while driving on the journey from Aberhill Depot to Inverness on 14 January 2017 on two occasions, that one of those occasions was not an emergency situation, and that use of a mobile telephone while driving could constitute a criminal offence. It was also agreed that the respondent's policy handbook prohibited the use of a mobile telephone while driving except in an emergency, and that picking up and operating the phone, even momentarily, would breach that policy.

The claimant's account recorded in the notes of the disciplinary hearing was that he had needed to know how to get to Inverness Depot and had also been thinking about results from his GP, and the disciplinary officer responded that the obvious issue was a breach of company policy and the law. The judgment records that the claimant accepted he had done something wrong. The case was continued to the final hearing listed for 21, 22 and 26 September 2017; this judgment did not determine the substantive unfair dismissal claim or any monetary remedy.