It was perhaps not surprising that the media would react badly to last week’s tribunal decision in Hehir v Metroline. A passenger leaving Mr Hehir’s bus snatched another passenger’s necklace and fled. Mr Hehir chased the robber, retrieved the necklace, and knocked the returning robber unconscious before detaining him for the police. The tribunal ruled that he had been fairly dismissed for doing so, on the grounds of gross misconduct. What can be ascertained from the reasoning?
Mr Hehir was dismissed on three counts. Bringing the bus operator into disrepute. Assaulting a passenger. And failing to protect passengers’ safety, having left the bus unattended with the engine running.
One item before the disciplinary hearing was a police report expressing the view that Mr Hehir used proportionate and necessary force, the returning robber having thrown the first punch and missed. The managers, by contrast, spent time looking at CCTV to determine whether the robber had come back to the scene of the crime to apologise and seek to shake hands with Mr Hehir and the victim. They did not accept the account of self defence.
The company had to prove that it honestly believed there had been acts of gross misconduct; had reasonable grounds for those beliefs; carried out a sufficient investigation; and followed a fair procedure. (The latter two tests were not greatly in issue.) In turn, it had to show that dismissal fell within the range of reasonable responses open to a reasonable employer.
In the tribunal’s view, despite the apparent lack of any negative coverage of the incident and the absence of any passenger complaints, the managers could form a genuine belief that disrepute had been suffered, and did form such a belief. It was also open to the managers to decline to accept the explanation of self defence. As the tribunal summed up, “safety, business reputation, and physical assault are all matters of significant importance to this employer”.
By now, some may be asking whether dismissal still fell within the range of reasonable responses. There was no mention of passengers’ safety actually being endangered, or of actual reputational damage or complaints. The rejection of the police conclusion, by reference to what the robber might have intended when returning to the bus, may have been borderline. The bad character of the robber, and the gratitude of the passenger whose necklace was recovered via a public spirited act, evidently did not sway the dismissing managers or the tribunal.
In cases of this nature, employment tribunals rightly take great care not to substitute their views for those of the employers’ decision makers. Might this case still end up in Mr Hehir’s favour on appeal, on the grounds that the decision was perverse – in other words, irrational or one that no reasonable tribunal properly directing itself could have reached? Time will tell.
Do you have a gross misconduct charge to assess, or to dispute? Might a fresh pair of eyes help avoid taking the wrong step? Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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