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The Employment Appeals Tribunal (“EAT”) has recently upheld the dismissal of a driver for gross misconduct. The case shows that a claim for unfair dismissal is not likely to succeed where an employee commits a true act of gross misconduct and particularly where that misconduct relates to a serious breach of safety rules. The employee’s claim failed, notwithstanding that there were some minor flaws in the disciplinary process.
The employee commenced employment as a driver with Aircoach in September 2008. Aircoach received a third party complaint that the employee was observed using an electrical device while driving on the M50 on 22 July 2013. Notably, Aircoach has a Mobile Phone Policy in place which prevents the use of mobile and other electronic devices while driving. Upon viewing CCTV footage of the incident, it was clear that the employee used an iPad whilst driving the vehicle. The CCTV footage showed the employee driving the vehicle with just one hand on the steering wheel, or no hands on the steering wheel at all on two / three occasions. The employee was driving at a speed at 100 kmph at this time.
The employee was advised by phone on 24 July 2013 that he was suspended on full pay pending an enquiry into the matter. The Operations Manager conducted a preliminary investigation on 25 July 2013, during the course of which the employee was provided with details of the complaint and given an opportunity to view the CCTV footage. The employee clarified that he was using the iPad to listen to the radio, in circumstances where the radio on the coach was not working and he wanted something to keep him alert after a 12 hour shift. The employee also maintained that he saw no serious breach of the safety policy and that it was his view that it was acceptable to use an iPad whilst driving. The investigation meeting was adjourned for a time to allow the Operations Manager to consider the evidence, after which she returned and confirmed that the employee was invited to a disciplinary meeting scheduled for 29 July 2013.
Best practice would usually dictate that following an investigation, a separate and independent person should conduct the disciplinary meeting, however the Operations Manager in this case also proceeded to chair the disciplinary meeting. Notably, the EAT did not comment on this minor flaw in the process. The employee was accompanied to the meeting and had a further opportunity to view the CCTV footage. It was found that there had been a serious breach of the Health & Safety Policy and the Mobile Phone Policy. After hearing the relevant evidence, the Operations Manager confirmed on the same day that the employee was summarily dismissed as a result of gross misconduct. Again, best practice would usually require that the decision maker should take some time to consider the evidence and deliver the outcome following the hearing.
The employee exercised his right of appeal and this meeting was chaired by the Managing Director on 22 August 2013, who upheld the decision to dismiss.
The EAT found that Aircoach acted reasonably and that there were substantial grounds justifying the dismissal, particularly where the employee’s actions constituted a serious safety risk and were in clear breach of company policies. A full copy of the decision can be viewed here.