HIS HONOUR JUDGE PUGSLEY
MS G MILLS CBE
MR S YEBOAH
EAST THAMES BUSES APPELLANT MR C DAVIS RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
Unfair dismissal – Exclusions including worker/jurisdiction
The Claimant, a bus driver, subject to physical violence and racist behaviour. Issue as to whether Employment Tribunal could face unfair dismissal when Claimant had overreacted. Employment Appeal Tribunal found that the ER did correctly consider reasonable response.
HIS HONOUR JUDGE PUGSLEY QC
We want to make it clear that in considering the appeal from the Employment Tribunal against the decision that the Claimant was unfairly dismissed we are only dealing with the issue of liability. Neither side is pursuing any issue that arises from the deduction of 40% by virtue of the Claimant's own contribution to the dismissal.
We have not made any secret of the fact that we have considerable sympathy for Mr Davis. He is a bus driver. One would have to live in an ivory tower not to know the difficulties bus drivers have with drunken, boorish yobs. He was driving his vehicle, a bus, and he was a subject of racial abuse, which we do not intend to dignify by reiterating in this judgment. The doors were opened by one of the men; there were loud bangs and the Claimant got out to investigate what had happened to his bus. There was further abuse from two men. The Claimant remonstrated. The Claimant was attacked, and was punched by one of the men. The Claimant got in a blow in self-defence. The Claimant was spat at and when the men concerned attempted to run away the Claimant tripped him up and, as he was getting up, the Claimant hit him again to pre-empt a further attack. The police were called, the Claimant was arrested, but no criminal charges were brought.
We do not want to be unduly cynical in saying that because on previous occasions in which there had been issues with the Respondent in this appeal, the Claimant in the court below, concerning difficulties with passengers, they are referred to in the papers, a dishonest employer might well have said that they did not believe a word the Claimant said. This employer acted with integrity and that was not their approach.
There was an investigation after this and the course of investigation is set out in paragraphs 12-22 of the decision:
The Tribunal reached the view that the Respondent did not have reasonable grounds to believe that the Claimant had assaulted the passenger as opposed to acting in self-defence. The evidence presented to the respondent and accepted by the respondent, appears to suggest that the Claimant was acting in self-defence and was not chasing after the passenger.
Jurors reach decisions on self-defence when everyone in court understands its reasons but would not perhaps always be within the accepted criteria of academic textbook writers. Jurors have regard to the merits of the whole of the circumstances of the case. One of the directions given to jurors week in week out is: bear this in mind that anyone who is under attack or has been attacked does not and cannot be expected to gauge precisely the exact amount of force that was appropriate and if what a person did was genuinely what they believed was appropriate to repel the attack then that is a powerful argument, the forced used was reasonable. We wish to make it very clear that we are not seeking to import into disciplinary proceedings the formal requirements of the criminal justice system. However on the facts of this case we consider any reasonable employer would take into account the circumstances of the case.
We consider on this basis that this Tribunal reached a decision that seems to accord wholly with the justice of the situation. It is just to the Claimant, but it is just in the deduction of 40% to the respondent. We consider the Tribunal was right to say that the employers, because what they believed what Mr Davis had said, could not in fact conclude in the way they did that self-defence was not available to him for that assault after the tripping.
But, on the other hand, we consider that the Tribunal was right to come to the view that there should be a contribution, because whilst the particular blow and punch might have been justified as self-defence, really Mr Davis, as he probably now realises, has by getting out of his cab had contributed to the chain of events which led to the assault. We do not consider that there is any error of law in either the decision of primary liability or the decision where the Tribunal sum up their reasons for they can see that any Employment Tribunal is going to have sympathy with an employee who is getting on with a difficult and demanding job and is the subject of mindless violence. Equally any Employment Tribunal would be concerned that an employer should have regard to the fact they employ people who are going to adhere to well tried procedures when they are placed in what are sadly predictable difficult positions. We consider this Tribunal decision carefully balances the issues. We dismiss the appeal.