In this case, the EAT held that an employment tribunal had been wrong to find that a bus driver who had got into a physical altercation with another driver had been unfairly dismissed, as the tribunal had failed to apply the "range of reasonable responses" test and had substituted its view for that of the employer.
Facts
Mr Taylor was employed by Metroline Travel Ltd (Metroline) as a bus driver. In November 2020, he was involved in a physical altercation with a bus driver for another bus company, Sullivan's, over which of them should park in a parking bay at a bus depot.
Following an investigation and disciplinary hearing, Metroline summarily dismissed Mr Taylor for gross misconduct, on the basis of two allegations: that Mr Taylor had left his bus cab contrary to his training; and that he had entered into a physical confrontation and his response to the Sullivan's driver's aggression was disproportionate. Metroline relied heavily on CCTV footage of the incident, which it considered showed Mr Taylor punching the other driver on the side of the head.
Mr Taylor appealed, complaining of various procedural failings, including that he had not been shown the CCTV footage before the investigation meeting, and that he had been treated more harshly than a colleague, Mr Loughlin, who had been allowed to keep his job following a similar incident. When his appeal was rejected, he brought a claim for unfair dismissal.
An employment tribunal held that Mr Taylor had been unfairly dismissed. It found that Metroline's investigation and disciplinary process was flawed, and that the internal appeal process did not remedy those flaws. The tribunal also considered that Metroline had been wrong to dismiss Mr Taylor, given that Mr Loughlin had been allowed to keep his job following a physical altercation with a passenger which, in the tribunal's view, was worse than Mr Taylor's altercation with the Sullivan's driver.
The EAT upheld Metroline's appeal, finding that the tribunal's decision was fundamentally flawed. It was apparent from the tribunal's judgment that Metroline had established conduct as the reason for Mr Taylor's dismissal and that it genuinely believed that his actions amounted to misconduct. However, the tribunal had erred in its analysis of the reasonableness of that belief, by substituting its view for that of Metroline and failing to apply the "range of reasonable responses" test against which the fairness of a dismissal must be judged.
In particular, the tribunal had been critical of Metroline's decisions:
- Not to question another driver who had been at the bus depot at the time and witnessed the incident in her rear view mirror, and
- Not to refer the matter back to the original dismissing manager when new evidence was brought to the attention of the internal appeal panel
In the EAT's view, the tribunal's analysis of the difference in treatment between Mr Taylor and Mr Loughlin was the clearest example of the tribunal having substituted its view for that of the employer. Metroline's case for distinguishing Mr Taylor's circumstances from those of Mr Loughlin was based on Mr Taylor's lack of remorse. The tribunal ought to have assessed whether that view fell within the range of reasonable responses. Instead, it had conducted an in-depth comparison of the two incidents and expressed its own view that Mr Loughlin's misconduct was worse than Mr Taylor's because his altercation was with a passenger in a public place, and was therefore likely to do greater damage to Metroline's reputation.
What does this mean for employers?
Although Metroline's appeal in this case was successful, that does not equate to a finding that Mr Taylor's dismissal was fair. Instead, the EAT remitted the case to a different tribunal for rehearing. It is possible that the procedural failings that Mr Taylor complained of could still be found to be outside the range of reasonable responses. This case is therefore a salutary reminder to employers of the importance of conducting a thorough and fair investigation and disciplinary process before dismissing an employee for misconduct.
