A recent decision of the Employment Appeals Tribunal (the EAT) is a good example for employers of how adhering to policies and conducting a fair and thorough investigation and disciplinary process can result in the successful defence of an unfair dismissal case.
The Claimant was a driver who worked with the respondent coach company for almost fifteen years. On foot of a complaint made to the respondent Company's office and subsequent viewing of CCTV footage, it transpired that during a forty to forty-five minute journey on a busy motorway, the Claimant had taken an iPad from his bag. This necessitated him taking both of his hands off the steering wheel whilst driving. The Claimant subsequently held the iPad up to his ear in one hand, as he appeared to be listening to something, whilst his other hand was on the steering wheel. On two or three occasions, neither hand appeared to be on the steering wheel.
The Company believed that the Claimant's actions constituted a serious breach of health and safety rules and that the Claimant had put himself and others in danger. The Claimant was therefore suspended with full pay pending an inquiry into the matter. An investigation meeting was held wherein he confirmed that he was listening to an audio-radio on his iPad as the coach radio was not working. He also added that there was wind coming from the door of the coach which was distracting. The Claimant was of the view that the Company should not have any issue with his use of an iPad as he had not used a mobile phone. The Company however maintained that the iPad was an electronic device and the use of such an electronic device was a breach of its Mobile Communications Policy.
Subsequently, the Claimant was invited to attend a disciplinary meeting and was advised of his right to be accompanied by either a union representative or a work colleague. Following the meeting, the Claimant was summarily dismissed on grounds of gross misconduct. He appealed the decision but his appeal was not upheld. The appeal officer placed weight on the fact that throughout the entire investigation, disciplinary and appeal process, the Claimant disputed that by his actions he had put his safety and the safety of other road users in danger.
During the hearing, the EAT was informed of the comprehensive training the Claimant had received during his five years employment with the Company, which included training on the Mobile Communications Policy. During his evidence, the Claimant continued to maintain that his actions were acceptable and disputed that he had put his safety and the safety of other road users in danger.
The EAT held that it was satisfied that the Company acted reasonably at all times and that substantial grounds existed justifying dismissal.
The case is a useful reminder for employers of the need to follow fair procedures in conducting investigation and disciplinary meetings and to have clear policies outlining the types of conduct that may be deemed to be gross misconduct. By having such policies in place and adhering to same employers increase their chances of being able to successfully defend unfair dismissal challenges.
For more information please contact Sinead Grace, firstname.lastname@example.org or your usual contact in A and L Goodbody Solicitors.
Sean Purcell v Last Passive Limited T/A Aircoach (UD1223/2014)