Claimant v Highland Country Buses Limited
Outcome
Individual claims
The tribunal found that the claimant was not provided with copies of the witness statements or investigation notes before the disciplinary hearing or appeals. This was a fundamental breach of the ACAS Code requirement to 'inform the employee of the problem' and meant the respondent failed to carry out a reasonable investigation under the Burchell test. The respondent's solicitor conceded that failure to provide the documentation rendered the dismissal procedurally unfair.
The claimant had claimed a failure to allow her to be accompanied at various meetings/hearings. However, during the hearing it became clear that this claim was without foundation, which was accepted by the claimant. The tribunal therefore dismissed this claim.
Facts
Miss Bowden was a bus driver employed for over 5 years. She received a final written warning in March 2023 after a successful appeal against dismissal. In November 2023, her trade union raised a formal grievance alleging she had bullied and harassed a colleague, Michael Duncan, with comments about his personal hygiene and mental health. The respondent investigated and held disciplinary proceedings. Miss Bowden was dismissed in December 2023 while on her final written warning. She appealed twice but both appeals were unsuccessful.
Decision
The tribunal found the dismissal was procedurally unfair because Miss Bowden was never provided with the witness statements or investigation notes before the disciplinary hearing or appeals, preventing her from properly responding to the allegations. However, the tribunal assessed there was a 90% chance she would have been dismissed anyway given she was on a final written warning and there were multiple witness statements. The compensatory award was reduced by 90% (Polkey) and both awards reduced by a further 25% for contributory fault in not raising the documentation issue.
Practical note
Employers must provide employees with witness statements and investigation evidence before disciplinary hearings to comply with the ACAS Code, but significant Polkey reductions will apply where the employee was on a final written warning and dismissal was highly likely regardless of procedural fairness.
Adjustments
The tribunal assessed there was only a 10% chance that the claimant would not have been dismissed had a fair procedure been followed. She was on a final written warning for similar conduct, multiple witness statements supported the allegations, and the final warning stated that any further misconduct could result in dismissal. The tribunal found it extremely likely she would still have been dismissed even with proper procedure.
The claimant failed to raise the issue of not receiving the relevant documentation at any stage of the disciplinary process and stated she was satisfied with the process and prepared to proceed. While the respondent bore primary fault for not providing the documents, the claimant contributed to the unfairness by not objecting.
Legal authorities cited
Statutes
Case details
- Case number
- 8000543/2024
- Decision date
- 23 September 2024
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- transport
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Passenger Carrying Vehicle (PCV) Driver
- Service
- 5 years
Claimant representation
- Represented
- Yes
- Rep type
- lay rep