Mr J Reilly v First Glasgow (No.1) Limited — 2019

Mr J Reilly was employed as a bus driver by First Glasgow (No.1) Limited from 23 November 2008 until his summary dismissal on 31 January 2019. The dismissal followed an incident on 24 January 2019 in which he reported a defect affecting the bus, then drove it back to the depot without authorisation after using the wheelchair ramp to keep it moving. The respondent treated this as gross misconduct and the claimant also pursued a holiday pay claim. The claimant sought reinstatement, but the tribunal did not order any remedy because both claims failed.

The tribunal accepted that the respondent's stated reason for dismissal was the claimant's conduct, namely returning the bus to the depot without authority and failing to follow safety and defect-reporting procedures. It rejected the claimant's suggestion that the dismissal was motivated by a wish to remove him because he challenged health and safety issues or because of his level of pay. Applying section 98 ERA 1996, the tribunal found that conduct was a potentially fair reason and that the respondent genuinely believed the claimant had committed the misconduct.

In assessing fairness, the tribunal applied the approach in British Home Stores Limited v Birchall and considered whether the respondent had reasonable grounds for its belief and had carried out as much investigation as was reasonable. It held that the respondent did have reasonable grounds, including the defect card, the claimant's own account, and the evidence obtained during the appeal from Michael Anderson and Vincent Hargan. Although it would have been preferable to interview those witnesses before dismissal, the tribunal found the appeal investigation cured that omission and that the claimant had not been prejudiced.

The tribunal also considered the band of reasonable responses and concluded that dismissal fell within it. It noted the claimant's long service and unblemished record, but found that this did not outweigh the seriousness of the breach of safety procedure, especially given the claimant's refusal to accept that he had done anything wrong and his evidence that he would do it again. The tribunal therefore held that the claimant was not unfairly dismissed.

On holiday pay, the tribunal accepted the respondent's contractual interpretation. It found that the claimant's holiday entitlement accrued pro rata during the leave year, and because he had only worked three months of his final leave year he was entitled to 5.25 days plus 3 public holidays. On that basis, it rejected the claim that further holiday pay was due.