36 | TECHNICAL
Case law corner Bus driver fairly dismissed for gross misconduct after physically assaulting a passenger committed a physical assault on ‘3P’ and breached company safety policies when wasn’t able to provide a copy to them. It also tried to make out the claimant had been made aware of its ‘use it or lose it’ policy on annual leave by its managers. Read the details of three interesting recent employment law cases and their outcomes
they left the bus unattended with the engine running, to chase an assailant. The disciplinary and appeal managers held a genuine belief that the claimant was guilty of gross misconduct which was held on reasonable grounds and was within the band of reasonable responses. The respondent carried out a fair and reasonable investigation and dismissal was a fair sanction. Therefore, the claim for unfair dismissal wasn’t well-founded and was dismissed. Holiday entitlement can be carried over where no reasonable opportunity is given to take it In the case of Pardo v Mobivape Ltd, the ET had to consider whether the employee had been given reasonable opportunity to take their leave entitlement before being subject to the company’s ‘use it or lose it’ policy. The claimant worked for the respondent for a period of around five months between September 2024 and February 2025. They generally worked for 10 hours per day on a seven-day rota, with days off on different days of the week. Of the payslips created during their employment, only one referenced holiday, stating: “annual leave remaining 0 days.” This was on the first payslip of their employment. Their final payslip referred to “final pay” but didn’t contain a breakdown of how that had been calculated. Following the termination of their employment, the claimant argued they were owed holiday from the respondent. The respondent disputed that, saying their payslips included holiday pay in October, November and December and that any remaining holiday entitlement expired at the end of 2024 in accordance with its ‘use it or lose it’ policy. The claimant, however, argued that they didn’t take any holiday during their employment. They brought a claim for outstanding holiday pay. Before the ET, the respondent argued there’d been a written statement of main terms in place for the claimant, but it
In the case of Heir v Metroline Ltd, the Employment Tribunal (ET) had to consider whether it was reasonable for the employer to dismiss an employee who committed gross misconduct while protecting a passenger who’d been subject to theft. The claimant was employed by the respondent as a Bus Driver for just over two years when they were dismissed without notice for gross misconduct. The dismissal followed events that took place on 25 June 2024, when the claimant was driving a bus and pulled into a bus stop. A man, referred to as ‘3P’ in the Tribunal judgment, pushed past a female passenger and pulled a necklace from their neck and ran off up the road. The claimant chased after the man and retrieved the necklace for the female passenger. The man returned towards the bus when the claimant hit the man, knocking them unconscious. The claimant was arrested but was later told by the police that no further action would be taken against him. The next day, the claimant was suspended from work and requested to attend an investigation into the incident. On 27 June 2024, the claimant attended an investigation meeting, accompanied by a trade union representative, during which they watched CCTV of the incident. A disciplinary hearing took place on 1 July 2024, and this was heard over several days. The claimant was dismissed for gross misconduct without notice. The claimant appealed against the dismissal, but this wasn’t upheld. A further, paper-based review of the case took place in accordance with the respondent’s disciplinary procedure. This was carried out by the Chief Operating Officer, who confirmed their decision to uphold the dismissal. The Tribunal found that conduct was a fair reason for dismissal in this case, i.e. the respondent’s belief that the claimant brought the respondent into disrepute,
However, the claimant argued that not only had they not been given an employment contract, but they were also not made aware of any rules relating to annual leave. The ET found that there was no employment contract in place and that the claimant hadn’t been told about the rules around annual leave (in particular, that it needed to be taken in the year that it had accrued and that they should take holiday or request it). There was also no evidence of any process by which the claimant could request annual leave, or have it approved, nor was there evidence of any holiday record that showed the claimant had, in fact, taken annual leave. Considering this, the ET accepted that there was no evidence that the claimant had taken any annual leave during their employment. The ET held that the claimant was due to be paid for all the annual leave they accrued during their employment on the basis that none had been taken. Nor was the claimant afforded a reasonable opportunity to take it. Therefore, the annual leave from the 2024 holiday year carried over into 2025. The ET awarded the claimant two weeks’ pay for the respondent’s failure to provide a written statement in accordance with Section 1 of the Employment Rights Act 1996. This was because there were no exceptional circumstances which rendered it unjust or inequitable to make such an award, but equally it wouldn’t have been just and equitable to award four weeks’ pay. Process must still be followed, even when the alleged misconduct seems obvious In the case of Shah v Food Hub Ltd, the ET had to consider whether the employer followed a full and fair process in dismissing an employee for what was deemed as obvious misconduct. The employee worked for the employer as a Sales Manager after receiving a
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