Employment Tribunal Rejects Unfair Dismissal Claim Against Bus Company

OUTCOME: Dismissed

Case Number: 3201600/2023

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] [COMPANY]

On: 21-29 October 2025

Before: Employment Judge S [NAME]

Tribunal Member Saund

Tribunal Member Carter

Representation

For the Claimant: [redacted] Respondent: [redacted] been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.

REASONS

Introduction

1. The Claimant was employed by the Respondent, [RESPONDENT] and [COMPANY], as a bus driver until his dismissal in March 2021.

2. The Claimant claims that his dismissal was automatically unfair due to protected disclosures made and/or in the alternative, it was unfair.

3. The Respondent contests the claim. It says that the Claimant was fairly dismissed for gross misconduct due to a failure to follow company requirements and policies in respect of [NAME] and the completion of BCR cards, taking an unfit bus out on the road, and it was entitled to terminate his employment because of his gross misconduct.

Case Number: /2024

2 The hearing

4. We heard the claim over several days between 2021. The claimant gave sworn evidence and represented himself. He explained that he had an individual assisting him who was legally trained and whom we understand attended the final days of the hearing.

Documentation

5. The Tribunal had the following documentation before it and took into account all relevant evidence:

a) Cast list; b) Chronology; c) Core bundle d) Supplementary bundle; e) CCTV; f) Additional photographs from [APPELLANT] adduced on 28 October 2025; g) Independent expert advice on warning lights from [NAME] dated 19 July 2023, obtained by Mr [NAME] and referred to in the appeal outcome letter; h) Witness statement for [APPELLANT]; i) Witness statements for Respondent for Mr [APPELLANT], Mr [RESPONDENT], Ms [RESPONDENT], Mr [NAME], Mr [NAME] and Mr [NAME].

Issues and relevant law

6. The Tribunal had several issues to determine as set out in the list of issues including in summary: the principal reason for dismissal; whether dismissal fell within the [NAME]; whether alleged protected disclosures were made; whether they were the principal reason for dismissal; and whether a fair procedure was followed.

7. The key questions were was the employer acting within the [NAME] in choosing to categorise the misconduct as gross misconduct; and was the employer acting within the [NAME] in deciding that the appropriate sanction for that gross misconduct was dismissal. When determining whether or not dismissal is a fair sanction, it is not for the Tribunal to substitute its own view of the appropriate penalty for that of the employer. The position has been succinctly stated by Phillips J giving judgment for the EAT in Trust [COMPANY] v Aquilar [1976] IRLR 251 at [24]:

"It has to be recognized that when the management is confronted with a decision to dismiss an employee in particular circumstances there may well be cases where reasonable managements might take either of two decisions: to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted 'unfairly' because there are plenty of situations in which more than one view is possible…".

Case Number: /2024

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8. The fact that other employers might reasonably have been more lenient is irrelevant: British Leyland (UK) [COMPANY] v Swift [1981] IRLR 91.

9. An employee will only succeed in a claim of automatically unfair dismissal if the Tribunal is satisfied, on the evidence, that the 'principal' reason is that the employee made a protected disclosure. The principal reason is the reason that operated on the employer's mind at the time of the dismissal: [NAME] v [NAME], Hay and [NAME] (above). In other words, it is the main or dominant reason.

10. Under section 94 ERA 1996, an employee has the right not to be unfairly dismissed. Section 98 ERA requires the employer to show a potentially fair reason for dismissal. If that is established, the Tribunal must determine whether dismissal was fair in all the circumstances. Section 103A ERA renders dismissal automatically unfair if the principal reason is the making of a protected disclosure.

11. [ADDRESS] of Appeal confirmed that the [NAME] test is applicable not only to the substantive decision to dismiss but also to the procedural steps taken by the employer: [COMPANY] v Hall [2001] EWCA Civ. 268, [2001] ICR 699. That includes the investigation: if the investigation was one that was open to a reasonable employer acting reasonably, that will suffice: Sainsbury's [COMPANY] v Hitt [2003] IRLR 23. Further the Tribunal was reminded that procedural defects in the initial stages of a disciplinary process may be remedied on appeal, provided that in all the circumstances the later stages of the process are sufficient to cure any deficiencies at the earlier stage.

12. An employee will only succeed in a claim of automatically unfair dismissal if the Tribunal is satisfied, on the evidence, that the 'principal' reason is that the employee made a protected disclosure. The principal reason is the reason that operated on the employer's mind at the time of the dismissal: [NAME] v [NAME], Hay and [NAME].

13. The Respondent’s reminded the Tribunal that the burden is on the employer to show the reason for dismissal. In most cases, the employer seeks to discharge this by showing that, where dismissal It is for the employee to show - without having to prove - that there is an issue which warrants investigation and which is capable of establishing the automatically unfair reason advanced. However, once the employee satisfies the tribunal that there is such an issue, the burden reverts to the employer, which must prove, on the balance of probabilities, which of the reasons was the principal reason for the dismissal: [NAME] v Penwith District Council [1984] ICR 143, CA.

14. The Respondents also referred the Tribunal to the case in which [NAME] LJ confirmed in Fecitt and ors v NHS Manchester (Public Concern at Work intervening) [2012] ICR 372, CA, the causation test for unfair dismissal is stricter than that for unlawful detriment under section 47B - the latter claim may be established where the protected disclosure is one of many reasons for detriment, so long as the disclosure materially influences the decision maker (i.e. is an effective cause), whereas section 103A requires the disclosure to be the primary motivation for the dismissal.

Case Number: /2024

4 Witnesses

15. The Tribunal heard from the Claimant and the following witnesses Mr [APPELLANT], Mr [APPELLANT], Ms [NAME], Mr [NAME], Mr [RESPONDENT] and Mr [RESPONDENT].

16. We found the Respondent’s witnesses all to be consistent and reliable and credible. We found that the Claimant was deflective, lacking in credibility and wholly inconsistent and often his account was implausible. We considered that his evidence was changeable throughout. For example, he initially explained that he took his own cards on the bus, when questioned about that from the Tribunal he went onto explain that he completed two cards. This was rejected by the Tribunal and found to be implausible given that there was no evidence of him completing two cards. This was the first time this was mentioned and that the Claimant sought to persuade the Tribunal that he would fill cards in for his own records and therefore the BCR card before us was never meant for submission.

17. We rejected this -noting that he accepted that he had been completing the BCR incorrectly during the disciplinary process and accepted that it was wrong and that he should be given a final written warning for it. Therefore, where there is a conflict in the evidence we have preferred the evidence of the Respondent witnesses.

Findings of fact

18. The Tribunal found that the Respondent kept contemporaneous notes of all key meetings including fact‑finding, disciplinary, and appeal hearings. The Claimant produced no notes of his own but initially accepted they were fair and accurate records before later disputing selected parts. The Tribunal accepted the Respondent’s records as fair, accurate and reliable in respect of the meetings the fact-finding meeting on 24 May 2023, the disciplinary hearing on 12 June 2023 and the appeal hearing on 18 July 2023.

19. We found as matter of fact that there was an allocation system in place at the garage and that there was a bus 79 allocated to the Claimant. We rejected the argument that any bus could be taken by any driver. The Claimants own evidence in respect of this was changeable. He initially explained that this was a garage wide process, then explained that this related to the route 8 only and in the documentation before us referred to the fact that it related to nighttime buses only.

20. We accepted the evidence of the Respondents that the allocation system was significant part of the oversight system. We also heard evidence that there was a night allocator whose sole purpose was to allocate night buses.

21. We also found as a fact that the garage supervisor and the Night allocator should be spoken too prior to a bus being taken without a BCR card that had not been allocated. The Tribunal found that though bus number 79 had been allocated to the Claimant on this particular date . The Claimant took a different bus, mirrorless MMC which was unallocated and had no BCR card present.

22. We found as a matter of fact that the CCTV was offered to be viewed but the Claimant and his representative declined.

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23. We found as matter of fact that it was a legal requirement and policy to complete the BCR card. We also heard that DVLA inspectors could mount the bus in order to inspect it and would look for the BCR card. The Tribunal heard evidence that [NAME] were legal and safety-critical, and the [APPELLANT] was fully aware of their significance. The [APPELLANT] admitted during the disciplinary process that he had completed the BCR card incorrectly.

24. We also found as matter of fact that the protected disclosures raised by the Claimant had been fully investigated.

25. We found that he was also well aware of the legal significance of the BCR card. We accepted that it was relevant background to this case that with nearly 23 years employment as a bus driver, The Claimant was clearly a very experienced driver. He was also the [NAME] garage branch secretary from around 1 April 2022.

26. We found as a fact that the complaints raised by the Claimant were investigated by the Respondent. There were additional complaints that we also accepted were looked into which were evidence.

27. The Tribunal noted that the [APPELLANT] had already received a verbal warning for placing paperwork on the dashboard of buses he drove and one-handed driving which he didn’t appeal. He was aware not to put documents on the dashboard which had the potential of covering the warning lights.

28. We did not find that there was any evidence at all of targeting and bullying and harassment of the [APPELLANT]. The Respondent's whistleblowing procedures were followed, and the Claimant’s complaints were taken seriously.

29. Despite the [APPELLANT] seeking to distance himself from understanding and awareness of the relevant company policies we found as a matter of fact that he had access to the Respondent’s policies and procedures which were available on Respondents ’s intranet / internal communications forum, [NAME], on which he was very active and had access to. Further as a member of [NAME] we find that him having little knowledge of the relevant policies to be implausible.

Relevant Law and conclusions

30. Section 94 of the Employment Rights Act 1996 gives employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to an employment tribunal under section 111. The claimant must show that she was dismissed by the respondent under section 95, but in this case the respondent admits that it dismissed the claimant on 4 March 2021.

31. Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.

Case Number: /2024

6 32. The [APPELLANT] disputes that he was dismissed for conduct grounds he states that the decision was predetermined and it was because he regularly raised health and safety issues.

33. We found that the reason for dismissal was misconduct namely gross misconduct and it was potentially fair reason pursuant to section 98 ERA 1996.

34. We considered that the first health and safety complaint was raised as early as 2021 and that the Respondent had opportunities to target and dismiss the Claimant if there was any predetermination on its part such as the issue with [RESPONDENT] where the respondent had come to the conclusion that the Claimant was seen to be the aggressor but that he was given an opportunity to resolve matters , further the comments made about fellow [NAME] colleagues which the Claimant now accepted were inappropriate namely there not having children , again no formal disciplinary action was taken in relation to that.

35. The outcome letters from the disciplinary hearings and the appeal hearing make it clear what was operating in the mind of the decision makers and we accepted the evidence of the Respondents in that regard. Further, we note that the Claimant did at one stage accept his culpability namely in respect of the BCR card completion being undertaken incorrectly and not checks not being carried out as required despite specifying on the card that the checks had been undertaken.

36. The Respondent’s policy statement on discipline clearly sets out that the following matters will be construed as “gross misconduct” : (a) a serious failure to observe rules/procedures affecting the safety of other staff or of the public; (h) serious negligence which causes or might cause loss, damage or injury; (i) any serious failure to carry out a proper instruction.

37. The Respondent’s Vehicle First Use Safety Check states that “To comply with the legal requirements bus drivers must carry-out pre-use safety checks…” and “Record all hazards & defects, on the Defect Card…” The essential nature of carrying out daily ‘walkaround checks’ to maintain safety standards for vehicles is reiterated in DVLA guidance and the requirement to make sure vehicles are roadworthy / detailed checks are carried out is detailed in DVSA national standard for driving buses and coaches.

38. We accepted the Respondents position that the advice distributed to all drivers, supervisors and managers in July 2021 regarding dashboard warning signs and red warning lights is clear and we accept that the Claimant would have seen or was available to him on [NAME], particularly that “Any warning lights found active during the ‘First User Check’ whether Red or Yellow must be reported to either an [NAME] or a supervisor prior to departure”, safety steps to follow when a red light is displayed on the dashboard.

39. We consider that the Claimant would have been aware given that he was raising issues about red lights in the documents before us prior to the date of the incident that led to his dismissal. Mr [NAME] explained in his evidence the dangers of ignoring such warnings during the course of his evidence, describing them as potentially “quick and catastrophic thermal events.

Case Number: /2024

7 40. We accepted the Respondent’s evidence is that on induction all drivers are told how to complete BCR cards and there is written guidance to that effect and the Claimant accepted that he knew how to fill in BCR cards.

41. Mr [NAME] in the fact-finding interview whether he knew the BCR card was a legal document, he replied that he did.

42. We found that there had been a reasonable investigation. We considered that the Respondent had followed the various stages of its own disciplinary process. We considered that Mr [NAME] fact finding was appropriate and adequate information for him to reasonably conclude that there was a case to answer and instruct a disciplinary hearing and formulate charges and grounds.

43. We find that Mr [COUNSEL] was the Claimants representative at the hearings. He was a senior member of [NAME] and again we found it implausible that the Claimant was not aware of his position or that he was only being called as a witness. We noted that he was copied into all of the correspondence and confirmed the reason for his attendance at the start of the meetings.

44. The Claimant took a bus that and he failed to follow the process. He then falsified the BCR card. We found and accepted Mr [NAME] considered the Claimants ’s disciplinary record and length of service but that the lack of integrity shown, the seriousness of the conduct and the dishonest conduct outweighed those factors.

45. The Claimant in his closing submissions seeks to assert that the charges 1-3 were standalone misconduct allegations and do not fall within the disciplinary policy categorisation for gross misconduct. We noted that in his outcome letter on the 12 June 2023 Mr [NAME] stated in respect of charge 4:

I explained that one handed steering implicates safety which also has an adverse impact on our business when driving assessments are completed which will scrutinise our performance and criticise us for these actions. I informed you that I had found the charge proven for Driving Standards: one handed steering dated 13th May 2023 and it was my intention to impose a Written Warning…

46. In respect of the remaining matters: he later stated that:

I explained that, a) there was a serious failure to observe rules/procedures affecting the safety of other staff or of the public, b) you caused serious negligence which causes or might cause loss, damage or injury, c) any serious failure to carry out a proper instruction.

I explained that as a result, I informed you that I had found the charge proven for the Behaviour & Conduct: Charge 1. Failure to Carry Out a First Use Check, Charge 2. Falsification of a Legal Document - BCR Card, Charge 3. Driving a bus with a Red Light Illuminated and it was my intention to Summary Dismiss you without notice.

47. In his evidence he was clear that he was confident and comfortable in his decision making and that it was gross misconduct as the consequences could have been

Case Number: /2024

8 catastrophic. We were satisfied that Mr [NAME] was clear in his evidence about how the conduct came within the provisions of the company policy as gross misconduct (as opposed to just ‘misconduct’) which is also reflected in his letter and was in his mind at the time.

48. Therefore, we accept that the written warning was for the one-handed steering [charge 4] only but that summary dismissal related to gross misconduct and that related to charges 1-3. The Claimant seeks to persuade us that only charge 4 that fell within gross misconduct charges and was withdrawn and that the Respondent erred in categorising the remaining charges as gross misconduct. We do not accept this and have accepted the evidence of Mr [NAME], and which is also corroborated by his letter dated 12 June 2023. We also had regard to Mr [NAME] evidence who formulated the charges and explained in his evidence that he had the company’s disciplinary policy in mind and that examples of misconduct included a serious failure to observe rules/procedures affecting the safety of other staff or of the public; serious negligence which causes or might cause loss, damage or injury; any serious failure to carry out a proper instruction. These are example of what may be construed as gross misconduct within the disciplinary policy.

49. From the detailed and well-reasoned dismissal letter, it is clear to us that the reason for the Claimant’s dismissal was gross misconduct, that Mr [APPELLANT] genuinely believed the Claimant was guilty of such misconduct and this belief was based on reasonable grounds following a reasonable investigation. Mr [NAME] confirmed this in his oral evidence and when it was put to him by [APPELLANT] ‘knowing what you know now would you have still dismissed me?’, he replied “Absolutely, yes”.

50. We accepted that appeal was very thorough and included a re-hearing. Following the appeal hearing on 18 July 2023 six individuals were interviewed independent advice was obtained regarding the bus lights.

51. The main aspect of the [NAME] case was that the CCTV did not demonstrate that a red light was on and therefore it supported his argument that the lights did not come on until the time when he stopped the vehicle and reported them. We considered that the angle of the CCTV did not assist us as it showed no lights on the dashboard at any point seen including when the [APPELLANT] stated that “all the lights came on” he stated that he reported loads of red lights”.

52. Therefore, we looked to the [NAME]’s report and the documents provided by [NAME]. Having heard the evidence from Mr [NAME] and understanding that the evidence was relied upon by the Respondents due them being provided by an [NAME] we considered that it was reasonable for the Respondent to rely on the documents provided and the engineers conclusion that the red light had come on 8 times and that there was feasible way that the red light had not been visible at the start of the journey due to the belt and pulley being removed.

53. Further the Claimant sought to place the blame squarely with the Respondent stating that it had placed a defective bus in the place where live buses had been placed, The Respondent accepted that the bus should have had a steering wheel cover but that further it had to be moved ( as could be seen by a shunter on the CCTV ) to allow for other buses to be able to enter the garage at the time of day We accepted this evidence though the Claimant could not accept responsibility that it was his failure

Case Number: /2024

9 to follow processes and the necessary checks is what resulted in his disciplinary hearing.

54. We rejected the point that was raised in the [APPELLANT] closing submissions that Mr [APPELLANT] stated that you weren’t supposed to know that in response to the [APPELLANT] stating that he knew he was going to be dismissed. We did not find any evidence of predetermination at all.

55. Nor do we consider that it was material to the issues before as to what did or did not occur in respect of the individuals in the engineering department. The Respondent witnesses explained that they had passed on the information of the lack of the steering cover to the relevant department and could not comment further. We did not consider that this was evidence of targeting of the [APPELLANT] who accepted in his evidence that he shared a responsibility to ensure that the vehicle was road worthy. Nor did we accept that the failure to question the engineers was a conscious decision to ignore vital evidence or predetermination and that the Respondent were right to consider the [APPELLANT] conduct.

56. We noted the blatant disregard for rules and procedure and rejected the Claimants argument that a written warning or advice were the only reasonable responses as no one actually was hurt and his unblemished record. In his closing submissions the [APPELLANT] stated that he would not do anything differently which demonstrated his lack of understanding of the risk that he placed both himself, his passengers and road users.

57. In all the circumstances, we concluded that the Claimants’ dismissal was substantively and procedurally fair and that it was based on reasonable grounds for the reasons set out and that it was well within the range of reasonable responses.

Automatically unfair dismissal

58. The Respondent admitted that all of the disclosures of information relied on by [APPELLANT] at paragraphs 10(a) – (g) and (i) – (n) of the list of issues were protected disclosures for the purpose of 43A ERA.

59. It was denied that paragraph 10(h) was a protected disclosure on the basis that the Respondent denied that the [APPELLANT] reasonably believed that the allegation raised by him that Mr [NAME] had closed the door forcefully and deliberately on his hand was raised in the public interest.

60. We accepted that there was longstanding animosity between the [APPELLANT] and Mr [APPELLANT] such that Mr [APPELLANT] evidence on this point was that it was a “toxic” relationship, we concluded that it the evidence supported the Respondent’s position namely that it was raised out of a personal grudge and inability to get along rather than any wider public interest.

61. Further, following the investigation into this matter, it was not conclusive whether Mr [NAME] had been sleeping on the premises and therefore we could not be satisfied that this was a disclosure raised in the public interest for all those reasons.

Case Number: /2024

10 62. We accepted that there was a plethora of evidence clearly demonstrating that the Respondent did take issues or concerns the Claimant raised with it about health and safety (or otherwise) seriously, addressed and / or investigated them, and he was kept informed of the outcomes of such investigations. We did consider that there was any evidence to support that the dismissal was pre-determined due to the raising of any of these matters.

63. The document and the evidence overwhelmingly demonstrates that the whistleblowing policy was taken seriously. We noted the correspondence in the bundle where the Claimant was encouraged to continue to raise matters. There were clear requests to maintain an open communication and the Claimant was encouraged to raise issues.

64. Therefore, there was no evidence before us that there was retaliation of any sort, targeting or retribution for the matters raised.

65. Accordingly, all claims fall away and are dismissed.

Employment Judge S [NAME]: 29 April 2026