Help with dismissal please - gross misconduct

[Ricky100]

Hi, this is my very first post on this forum and I hope someone can help me.

 

Some basic facts first: I am a bus driver and I have worked for the company for just under 10years and have got a clean record with them. My attendance is 100% and timekeeping is just as good.

 

I had a blameworthy accident at work last week. Here's what happened - I was in service travelling at 29mph (there is proof of the speed) in a 30mph zone, and there was a parked car up ahead. I moved out to overtake the parked car, but misjudged the distance and caught the back of the car (no driver/passengers in the car). I braked as soon as I knew I hit the car and got the bus to a safe standstill. Unfortunately, the car was pushed in front of the bus causing the car to be a write off and approx £10,000 damage to the bus.

No one was injured and there is CCTV and one independant witness statement to confirm what happened.

 

I had alcohol and drugs tests which came back clear, and I had a medical and eye test which I also passed, no problems. I was suspended on full pay for a week until the disciplinary which was today.

 

I have now had a summary dismissal for gross misconduct which they have said is "driving without due care and attention". I cannot see how they have classed it as driving without due care and attention as I had full attention and control of the bus, but I just misjudged my width.

 

There have been at least 4 other drivers which have had worse accidents and also caused injury and have a bad driving record who have kept their job, so I don't see how they can dismiss me for my first accident (which is what it was!)

 

I have put in for an appeal, but how likely is it that the appeal is going to be successful? And should they take into account my clear driving record and the 5 undercover assessments that I have had done over the last 3 years which have all come out as "outstanding performance"?

 

I am supporting my wife & 3 children and have another baby due in October, so my job really means the world to me.

 

ANY information/help/guidance would be very gratefully recieved.

 

Many Thanks

 

Richard

[Bigredbus]

Hi Richard, and welcome to the CAG...

 

First port of call... your book(s) of employment... it/they should shed light on both accident(s) and what your company considers as being 'Gross Misconduct'...

 

I remind you that no one should be summarily dismissed for a first offence, unless being for gross misconduct... hence your need to check if your company considers accidents as such...

[rebel11]

Ricky100

 

Are you in a Union?

[Ricky100]

Ricky100

 

Are you in a Union?

 

Yes, I had a union rep with me today and he couldn't believe it either. He even pointed out that there was another driver who had an accident which was identical to mine and that driver had a verbal warning!

 

The union are helping me a bit with the appeal, but haven't really said how successful the appeal generally are

[Ricky100]

Hi Richard, and welcome to the CAG...

 

First port of call... your book(s) of employment... it/they should shed light on both accident(s) and what your company considers as being 'Gross Misconduct'...

 

I remind you that no one should be summarily dismissed for a first offence, unless being for gross misconduct... hence your need to check if your company considers accidents as such...

 

 

Thanks for your reply. My employer has got every angle covered in that aspect really, as it states gross misconduct could include a blameworthy accident "depending on the severity of the accident" but doesn't say what they class as severe or who decides!

[rebel11]

Ricky,

 

It could be that the company are just using the accident to reduce drivers. Even if the 'Appeal' is unsuccessful, you can still lodge a claim at

an 'Employment Tribunal', you've got a good record. So, it is not the end. The Employment Tribunal have powers

to reinstate you, if you win your case.

 

For the time being, might be an idea to get all the info you'll need to build a case just incase your appeal fails,

it seems like victimisation if your not treated the same as other drivers who have been treated differently when they've had accidents.

Edited April 22, 2010 by rebel11

[greendollar]

The bus company must be fair and consistant when treating all employees .... if ,as you say , other employees have been given verbal warnings for similar or the same offences then you need to ask why you have been subject to harsher treatment than them . If they uphold your dismissal at appeal then you have good grounds to take it to tribunal , especially as you have a good record and your length of service will be taken into account . Good Luck

[bulldog1]

Hi Ricky, This seems to be victimisation by your employers, find out from your rep if he feels he is confident enough to argue your case if not get your Regional organiser involved asap

[Bigredbus]

As mentioned in post #7, by 'greendollar', employers should impose similar sanctions for similar offences; if not, the employee given the tougher sentence maybe unfairly dismissed so long as the circumstances are truly comparable.

[Ricky100]

As mentioned in post #7, by 'greendollar', employers should impose similar sanctions for similar offences; if not, the employee given the tougher sentence maybe unfairly dismissed so long as the circumstances are truly comparable.

 

Thank you. My accident is detailed above, there have been 2 others which the union and I feel are extremely similar. The first was a driver who "forgot to stop" and drove straight into a car. He was dismissed, but won his appeal on compassionate grounds as he had "a lot on his mind that day". The other accident, was an out-of-service bus being driven straight into the back of a lorry - no reason given and this driver was not dismissed, but given a written warning and instructed to complete a refresher course at a training centre for one week.

 

There have also been 2 others, but not sure of the details of the accidents (whether they are similar to mine or not). The drivers were both dismissed but won an appeal.

 

I am pinning my hopes on the appeal going my way, but I am unsure what to do at the appeal. I do not want to lie (I haven't thus far) by saying "I had things on my mind" because that isn't the case, I just literally misjudged overtaking the vehicle. I feel I should mention that I am supporting my wife and 3 children and I have a baby on the way in October, but will this really be relevant in the appeal?

 

Many Thanks again for your replies

[Bigredbus]

Thank you. My accident is detailed above, there have been 2 others which the union and I feel are extremely similar. The first was a driver who "forgot to stop" and drove straight into a car. He was dismissed, but won his appeal on compassionate grounds as he had "a lot on his mind that day". The other accident, was an out-of-service bus being driven straight into the back of a lorry - no reason given and this driver was not dismissed, but given a written warning and instructed to complete a refresher course at a training centre for one week.

 

There have also been 2 others, but not sure of the details of the accidents (whether they are similar to mine or not). The drivers were both dismissed but won an appeal.

 

I am pinning my hopes on the appeal going my way, but I am unsure what to do at the appeal. I do not want to lie (I haven't thus far) by saying "I had things on my mind" because that isn't the case, I just literally misjudged overtaking the vehicle. I feel I should mention that I am supporting my wife and 3 children and I have a baby on the way in October, but will this really be relevant in the appeal?

 

Many Thanks again for your replies

 

It could be argued that the first comparator is not truly similar to your accident, when the second could be more comparable. Nevertheless, they did not seem to take much consideration of mitigating circumstances... attendance, never had an accident in X years of service, etc...

 

Would you think that there is a possible underlying reason for wanting to dismiss you summarily?

[Ricky100]

Would you think that there is a possible underlying reason for wanting to dismiss you summarily?

 

Yes I personally feel very much so. As I am a more senior driver (almost 10yrs continuous service) my contract is better than a lot of the new drivers. Many senior drivers know that although it's not right, there have been many dismissals of senior drivers for very minor reasons.

Basically, I earn £4 more per hour than a new driver, I have better holiday entitlement and I get things such as unsocial hours pay etc. My contract is highly sought after.

 

This cannot be proved though!

[Bigredbus]

The underlying intention might be difficult to prove but comparing a new driver's contract to yours could shed light on a possible reason to dismiss...

 

If they have been summarily dismissing 'senior' drivers for 'minor' reasons in the recent past and left new drivers on the payroll, just getting a slap on the fingers... this could shed light on their true reasons...

 

They will have to tread carefully here as if you bring that point up, they will have to justify disparity in treatment...

[Ricky100]

Ok, so I just checked with my handbook and it states gross misconduct could be "serious negligence which causes or could cause unacceptable loss, damage or injury", so I suppose they have viewed my accident in this manner, but is it fair to give a summary dismissal, when a more appropriate sanction would have been a written warning and a chance to improve (ie completing a refresher course?)

I am really panicking right now as I desperately need my job to be able to feed my family. This is causing so much stress in the family home it is unbearable.

 

Thanks to those for replying, any help & info is much appreciated

 

Richard

[rebel11]

Ricky100

 

The best thing is to distract yourself, take the kids out, keep yourself busy, I know it's easy for me to say. Don't worry, you've got the 'Appeal'

then the Tribunal if necessary. As I said it sounds grossly unfair from what your saying. Hopefully the Union are fighting your corner.

[Bigredbus]

Ok, so I just checked with my handbook and it states gross misconduct could be "serious negligence which causes or could cause unacceptable loss, damage or injury" (Was that comparable accident due to serious negligence and have caused unacceptable loss and damage?), so I suppose they have viewed my accident in this manner, but is it fair to give a summary dismissal, when a more appropriate sanction would have been a written warning and a chance to improve (ie completing a refresher course?)

I am really panicking right now as I desperately need my job to be able to feed my family. This is causing so much stress in the family home it is unbearable.

 

Thanks to those for replying, any help & info is much appreciated

 

Richard

 

...

[rebel11]

Bigredbus,

 

I think we've established that. The question is, is his treatment compared to his fellow colleagues less favourable? Why has he been treated differently? What can he do about it? Is he being victimised?

[Bigredbus]

Once the comparator has been established, he can then detail the content of the appeal...

 

a) severity of the award...

b) disparity in treatment...

c) mitigating circumstances...

d) underlying reasons (the face value of his actual contract)...

[rebel11]

The tribunal can also consider reinstatement, but I think that depends of how much the Reciprocal Trust has been destroyed.

[Bigredbus]

I do not think that much of that trust and confidence would remain if 'Ricky100' decided to pursue a legal course of action...

[Ricky100]

Thanks again for your replies, I just wonder how "serious negligence" my accident really was. I did take reasonable steps to avoid the accident (by moving out to pass the parked car and not speeding) and it is seen to be a misjudgement of width of the vehicle.

The other accident, a driver drove straight into the back of a lorry, without due reason, therefore NOT taking reasonable steps to avoid the accident. Surely this should've been taken into account?

 

After reading up on the ACAS website, I have also found out that at the "informal meeting" (to gather evidence) before the suspension, it states (in their words):

"be clear about - what needs to be done to improve, - when you might speak again, - what could happen next i.e formal action. And as a side comment, ACAS state :

CHECK:

• offer help eg training

or counselling

if needed

• keep written notes

 

I was not offered training or counselling, and I feel that this step could've been offered to me, therefore completing a training course before being put forward to dismissal?

 

Also, in the disciplinary hearing, ACAS state that when the hearing is adjourned, the time should be spent:

"Adjourn to consider any action

(if necessary) and think about:

- previous sanctions

- employee’s record

- any special circumstances"

This was not the case. The time was spent viewing CCTV (which should've been done prior to the hearing surely?) and my employee record was not even mentioned. The words the manager used were:

"I have just viewed the CCTV and although I can see you moved out to overtake the parked car it was not enough and therefore it is a summary dismissal".

 

As stated before, I have never been in this situation before, but to me it does seem highly unfair.

 

Thanks again

[rebel11]

Ricky

 

Keep jotting down stuff make sure the Union Rep knows all the relevant details, sometimes companies do stuff in haste.

[rebel11]

Well, if common sense prevailed and he hadn't been treated less favourably then he wouldn't have been put in a position where legal action is the last resort for him to obtain justice, he didn't wake up one day and

say I know I'll take the company to a tribunal.

In summary he didn't decide to, he was forced to.

 

 

I do not think that much of that trust and confidence would remain if 'Ricky100' decided to pursue a legal course of action...

[bingi]

I can tell you this much. If you have access to a computer,(which you obviously do), then get busy. Research like mad. There are so many legal sites with free advice and articles etc. on employment law issues. Knowledge is power. Having worked for 10 years it is unlikely that they should be allowed to arbitrarily dismiss you for a first infraction, even if it is a big one. Accidents happen. If you signed something that said that they can fire you for that, then you may have a problem. Otherwise, find other similar cases so that you can fight this thing with precedents. Good luck!

[Ricky100]

Hi - got an update - will post a new thread.