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In Bluebird Buses Ltd v Borowicki UKEATS/0009/17/JW, the Claimant was a bus driver who was dismissed after he drove a bus into a patch of flooded road and the bus started to fill up with water. The Employment Appeal Tribunal (EAT) in dismissing the appeal, concluded, as had the Employment Tribunal (ET), that the Claimant had been unfairly and wrongly dismissed and the ET had not substituted its own opinion for that of the Claimant’s employer.

The factual background of Bluebird Buses

The Claimant, Mr Borowicki, was Polish and employed by Bluebird Buses Ltd (the Respondent) as a bus driver between 28 April 2007 and 14 January 2016.

On 8 January 2016, he arrived at work and telephoned his manager, Mr Goodall. The Claimant sometimes had difficulty understanding English but Mr Goodall told him that the road between Pitmedden and Methlick was closed although he could not tell the Claimant where. A further conversation clarified this matter and the Claimant then began on his bus route from Fyvie into Methlick.

There were no passengers on the bus. The road was hazardous and the Claimant encountered puddles and wet areas. When he arrived at the outskirts of Methlick there were no warning signs on the road to indicate that the road ahead was closed. He was unaware that the nearby river had burst its banks as it was still dark. Although the road looked wet in front of him he thought that this was shallow lying water. He reduced his speed from 30 to 17mph. As soon as the bus moved forward, the water almost immediately began coming in the bus door. The Claimant was shocked as he had misjudged the depth of the water. Before he could take any other action the bus began floating. The Claimant attempted to text and telephone Mr Goodall but the signal was poor. Once he got through, the manager told him to go to the highest point on the bus. The police and a local resident arrived and the Claimant was instructed to break a window to escape.

When the Claimant arrived back at the Respondent’s depot, Mr Goodall claimed that he had told the Claimant not to go to Methlick. The Claimant disputed this saying he had told him to go but via a different route as the road was closed. The Claimant conceded that he had made an error but was still dismissed for gross incompetence.

The decision of the ET

The ET considered whether the Claimant’s dismissal was fair or unfair, and whether the conduct was “sufficient for dismissal” according to the standards of a reasonable employer.

The ET agreed that the Claimant should have known that the weather was bad, that there was a flooded part of the road on his journey and that there could be other flooded areas. However they also heard that the Claimant stated that there were no warning signs as he approached the crucial section of the road in question and he had seconds only to make a decision. While the CCTV that the court later saw indicated the extent of the flooding, in the dark and under the street lighting with reflections, it had been harder for the Claimant to gauge the depth of the puddles. The ET concluded that it was clear that the Claimant had made an error of judgement.

The ET stated that it should be careful not to substitute its views for that of the Respondent’s managers as they were all PCV qualified drivers. Their position was that the Claimant should have acted differently as a professional driver and that he had made a serious mistake and should be dismissed.
The ET explained that the question then became whether a reasonable employer in these circumstances, acting reasonably, could have reached that conclusion. It was important not to consider the Claimant’s decision in hindsight, as a reasonable employer would have judged the Claimant’s actions at the time. The ET found that insufficient attention had been paid to what the Claimant encountered when he drove into the village and the short time he had had to assess the situation. The Respondent had not ensured that every driver including those who spoke Polish had been warned about the risk of roads becoming flooded and what actions they should take. The Respondent had also failed to give the Claimant training or advice about the factors he should consider when encountering a flooded road.

The ET concluded that a reasonable employer would not have characterised the error, given the surrounding circumstances, as being evidence of gross incompetence, and therefore a sufficient basis on which to summarily dismiss.

The decision of the EAT

The Respondent appealed arguing that the decision reached by the ET was not properly open to it on the available evidence (the perversity ground) as there was no basis for its conclusion that the Respondent’s managers, who considered the Claimant’s conduct, had done so “with the benefit of hindsight”. The Respondent also claimed that the ET had failed to follow a correct self-direction on not substituting its own view for that of the Respondent on the issue of unfair dismissal.

The EAT, citing the line of authority, concluded that the ET had accepted that the reason for the dismissal was a potentially fair reason, but the central issue had been whether the dismissal was a reasonable response from the standpoint of a reasonable employer. The ET had clearly reminded itself not to substitute its views for that of the relevant decision makers in the Respondent’s organisation and in doing so, were entitled to find that dismissal was outside the band of reasonable responses, without being accused of placing itself in the position of the employer.

Our solicitors’ comments on Bluebird Buses Ltd v Borowicki

Caroline Lewis, specialist employment solicitor at Redmans commented on the case: “This case highlights the importance for the employer to consider the full circumstances surrounding an alleged act of misconduct. This is key when determining ‘reasonableness’ of an employer’s actions. When considering the level of disciplinary sanction, employers must consider whether they took sufficient action to prevent the misconduct from occurring – in this case, the employer had not provided training nor made sure the employee saw the advice that had been given that morning about flooding. The employee’s admission of his poor judgment was also significant.”

The decision of the EAT can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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