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					                                                     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




UKEAT/0288/07/ZT
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.




UKEAT/0288/07/ZT
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.




UKEAT/0288/07/ZT
                                              -1-
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.




UKEAT/0288/07/ZT
                                                        -2-
            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,




UKEAT/0288/07/ZT
                                                         -3-
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.




UKEAT/0288/07/ZT
                                                 -4-

				
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