The Employment Appeal Tribunal (EAT) has upheld an appeal against a decision of the Employment Tribunal (ET) that a bus driver was unfairly dismissed, finding that the ET had erred in substituting its own view for that of the employer (Metroline Travel Ltd v Taylor).

The driver had been involved in a fight with a driver who worked for another bus company over who should park in a parking bay at a bus depot. The driver disputed what had happened, in particular denying that he had punched the other driver, and claimed that his actions had been in the context of COVID-19 social distancing and his fear that his life was at risk or that he would be seriously injured. Following an investigation and a disciplinary hearing, however, he was dismissed.

The ET found that his dismissal had been unfair. Prior to the investigation meeting, he had not been provided with the CCTV footage his employer had relied on, and a statement from another bus driver who had witnessed the incident had not been available to the investigation meeting. His employer had not requested a statement from the driver with whom he had had the altercation or requested CCTV recordings from the other bus company. He had cited as a comparator another bus driver who worked for his employer, who had been dismissed but reinstated on appeal after an altercation which, in the ET’s view, was worse than the incident the man had been involved in.

Upholding his employer’s appeal against that ruling, the EAT found that, in analysing the reasonableness of the employer’s view that the driver’s actions constituted misconduct, the ET had substituted its own view for that of the employer. The ET’s criticism that several pieces of evidence had not been requested at the investigation stage was not explained in the context of whether that omission was still within the range of reasonable responses.

The ET had stated that the appeal process did not remedy any flaws in the earlier investigation. However, it was incumbent on the ET to analyse that in the context of the range of reasonable responses and, if it concluded that it was outside that range, to explain why.

The ET had also erred in its analysis of the comparison with the other altercation. The employer had argued that they were distinguished by the driver’s lack of remorse compared with the other driver. It was not for the ET to decide which incident was worse or what weight to place on any remorse shown, but rather whether the weight placed on them by the employer was within the band of reasonable responses. Again, the ET had substituted its own view for that of the employer.

The EAT accepted that the substitution error affected every stage of the ET’s analysis. The claim was remitted to a differently constituted ET for rehearing.