Appeal No. UKEAT/0288/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 August 2007

Before
HIS HONOUR JUDGE PUGSLEY
MS G MILLS CBE
MR S YEBOAH

EAST THAMES BUSES	APPELLANT

MR C DAVIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J BROWN
(of Counsel)
Instructed by:
Messrs Eversheds LLP Solicitors
Kett House
Station Road
Cambridge
Cambridgeshire
CB1 2JY 	
For the Respondent	MR S ORAM
(of Counsel)
Instructed by:
Free Representation Unit
6th Floor
289-293 High Holborn
London
WC1 7HZ	

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

1.	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.  

2.	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.

3.	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.

4.	There was an investigation after this and the course of investigation is set out in paragraphs 12-22 of the decision:

12.	The Claimant prepared an incident report of the incident (p.77). There was a fact finding interview between the Claimant and Mr Mark Piper, acting service quality manager. The Claimant’s account was given during the course of that interview (p.82-85).
13.	The Claimant was invited to attend a disciplinary hearing which eventually took place on 17 July 2006. The Claimant was charged with a disciplinary offence of unsatisfactory conduct “in that you assaulted a member of the public”. The disciplinary hearing was conducted by Mr Robin Darken.
14.	The documents that Mr Darken had before him were the Claimant’s incident report, the notes of the incident report, the notes of the fact finding interview and a statement from Mr Wynne, one of the bus incident controllers who attended the scene. The essential conclusion on the facts made by Mr Darken were
i)	The Claimant left the cab after he had been subjected to abuse, and
ii)	The Claimant chased after a passenger and assaulted him
15.	Mr Darken accepted the Claimant’s account and believed “the majority” of what the Claimant told him. He however stated in his conclusion that the charge was proven. The record of the disciplinary hearing states
“The Chair apologised for the~ lengthy deliberation, explaining that the charge was a very serious one and demanded serious consideration. He stated that, after considering all the evidence in front of him, and considering the fact that not only did Mr. Davis leave his cab, he actually chased after a passenger and assaulted him, the Chair found the charge proven”.
16.	From what was said at the disciplinary hearing, the Claimant’s incident report, and what the Claimant says in the fact finding interview it appears to have been the Claimant’s contention that the younger man had attempted to run away and that he tripped him up.
17.	It is to be noted that Mr Darken did not disbelieve “the majority” of what the Claimant told him and nobody told Mr Darken that the Claimant chased after the passenger. The Claimant did not appear to have been saying that he chased after the young man. Mr Darken came to the conclusion that the Claimant chased after and assaulted the passenger based on a misunderstanding of the Claimant’s evidence.
18.	The Claimant appealed the decision to dismiss him. His appeal was heard by Mr Priestley on 25 July 2006. Mr Priestley upheld the decision to dismiss the Claimant.
19.	Mr Priestley accepted the Claimant’s story in totality. He confirmed this in evidence. Mr Priestley also came to the conclusion that the Claimant “ran after the passenger”. This conclusion is at odds with the Claimant’s account which was then that he went a “few steps after the passenger before tripping him up”. The Claimant’s letter of appeal dated 19 July 2006 (p.97) makes clear that the passenger was tripped up. The notes of the disciplinary interview state
“The Chair also pointed out that the CCIV evidence clearly showed that Mr Davis had chased the passenger more than a few steps that he had stated, as the footage showed him returning to his bus from the position behind the rear doors.”
20.	The cameras are sited inside the bus overlooking the front and rear doors, some ten or so feet apart, and are directed towards the pavement to show the boarding steps on to the bus. They have limited fore and aft vision. The CCIV evidence did not actually show the Claimant running or chasing after the man. What it showed is the Claimant coming into view and going out of view of the front and rear camera from various directions. From this Mr Priestley has concluded that the Claimant ran after the passenger.

21.	In summary, the Claimant did not admit that he ran after the man, the evidence was that the Claimant hit the man, “so pre-empting him striking [the Claimant] again” (p.105).
22.	The Claimant made a further appeal, a compassionate or sympathetic appeal to the managing director, Mr Barrett, who rejected the appeal. In his appeal letter to Mr Barrett the Claimant stated
“The person leant back and spat in my face; he then turned to run away, I instinctively got off the bus and tripped him up. While he was getting up he made a further attempt to hit me again so I pre-empted his intentions and hit him and told him no more... all I did was defend myself...”

5.	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.

6.	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.

7.	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.

8.	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.