Jinadu v Docklands Buses Ltd

Where an employer’s contractual appeal is a rehearing, an Employment Tribunal must identify the reason or reasons for the dismissal as maintained or determined at that appeal. It must then assess whether dismissal was reasonable by reference to those reasons.

A finding that dismissal for an earlier refusal to obey an instruction fell within the range of reasonable responses does not resolve the claim where the appeal decision appears to rest instead on poor performance and public safety. The Tribunal must make adequate findings on that issue before it can determine fairness.

The Appellant, a bus driver, was dismissed for gross misconduct after repeatedly refusing an instruction to attend an in-house driving assessment. Her contractual appeal was a rehearing. It was adjourned to allow her to attend the training centre.

She later attended corrective training and failed an assessment. The appeal was then rejected. The appeal notes referred to her unsatisfactory driving standard and public safety.

The Employment Tribunal rejected her unfair dismissal claim on the basis of her repeated refusal to attend the training school. On appeal, the central issue was whether the Tribunal had made sufficient findings about the reason for the dismissal following the rehearing appeal and the fairness of that dismissal.

1. Appeal allowed and remitted. The Employment Tribunal erred by failing to make proper findings about the reason or reasons for the decision on the rehearing appeal, and about the reasonableness of the Appellant’s continued dismissal by reference to those reasons.

2. The Tribunal was entitled to reject complaints that the disciplinary process should have been paused pending the Appellant’s grievances. It was also entitled to conclude that the managers against whom she complained could remain involved, since Mr Russell conducted the disciplinary hearing and no extant grievance concerned him.

3. The Tribunal was entitled to characterise the repeated refusal to attend the driving school as insubordination. The instruction was found reasonable in light of passenger and public safety, and the Appellant had repeatedly refused despite knowing that dismissal could follow.

4. However, the employer accepted that the appeal was a rehearing. The Tribunal’s fairness reasoning addressed the investigation, disciplinary hearing and appeal procedure, but did not identify why the appeal panel rejected the appeal. The appeal notes appeared to rely on poor driving and public safety after the failed assessment. That potentially raised a different basis from the original misconduct dismissal.

5. The case was remitted for those issues. Further evidence was not presently necessary, although the remitted Tribunal could receive it in its discretion. The Appellant’s application for recovery of appeal fees was refused.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Tribunal’s dismissal of the unfair dismissal claim and remitted the identified issues.
• Employment Tribunal: At East London Hearing Centre, it dismissed the Appellant’s unfair dismissal claim in a judgment sent on 5 June 2014.