The commonest form of failure” (it is often said) “is forgetting what you’re trying to do”. So it’s worth taking careful note of a case that recently considered the question of whether an employer was being consistent in their disciplinary and appeal decisions.

The facts were that Ms Jinadu [1] was a bus driver. Her driving came under scrutiny following a complaint by a member of the public.  She was subsequently observed on CCTV footage “pulling out with cars still passing, one-handed driving, clipping kerbs, showing poor lane discipline, running a red light and pulling into the path of two cars”.  

It’s fair to say that Ms Jinadu took a robust approach to the criticism she faced. She refused to attend driver re-training and an assessment.  She told a disciplinary hearing “you will have to sack me because I am not going. I will draw blood before going”. Docklands buses took Ms Jinadu at her word.  Having given her several opportunities to change her mind, they dismissed her. Importantly, the reason for dismissal was misconduct – refusing to attend the training.

On appeal, however, Ms Jinadu was generously given a further opportunity to attend driver training. After much delay, she did so but failed her assessment. At the reconvened appeal hearing the decision to dismiss was confirmed. However it appeared to be on the basis of her failure to pass the driving assessment. The reason for dismissal on the face of it was now capability – her poor driving.

Could this difference in the reason for dismissal between the original hearing and the appeal hearing cause a problem for the employer? When the case came before the Employment Appeal Tribunal the ambiguity in the reasoning led to the case being sent back to the Employment Judge to consider what was the actual reason for dismissal and whether Docklands Buses had been acting reasonably. After all it was noted that according to the employer’s policies it would only normally have dismissed for capability after an employee had failed their driving assessment twice.

Ms Jinadu’s case is an important reminder to pay close attention to the original reason given for dismissal and to conduct any appeal with very clear reference to this original reason.

This post was edited by Fran Read and Clive Day. For more information, email blogs@gateleyplc.com.

[1] Jinadu –v- Docklands Buses Limited 2015

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.