A bus driver who ran a red light has won his case for unfair dismissal, after a judge ruled that a “five second” lapse in judgement should not discount more than 30 years of good service.
Abdul Jabbar had worked for National Express West Midlands and its predecessors for 37 years before he was fired for driving through a red traffic light on a major road in the West Midlands town of Dudley.
Although the 59-year-old driver did not deny that he had skipped the lights, he claimed the company’s decision to sack him was too harsh and was inconsistent with the treatment of other drivers involved in similar incidences.
While Jabbar acknowledged that the incident was not “trivial”, he noted it was the type of offence that other employees had been merely given warnings for, albeit final warnings. Before the incident took place, the bus driver had neither been involved in a driving accident nor received a driving penalty for 32 years.
In handing down the judgment, judge Glyn Lloyd accepted that Jabbar’s actions were “a five-second momentary lapse of concentration on his part, by a driver who sits in the cab facing the unpredictable environment of busy city roads eight to 10 hours each day”.
Nick Elwell-Sutton, partner at Clyde & Co, told People Management: “While only a first instance [tribunal] case, this is a timely reminder that dismissal for an act of gross misconduct may not always be statutorily fair where it falls outside the band of reasonable responses. An employer should always consider, and be able to evidence, whether a lesser sanction would have been more appropriate in the context of the case as a whole."
Keely Rushmore, senior associate in the employment department at SA Law, added: “Employers often assume that dismissal will always be fair when gross misconduct is proven. This is not the case, as this case highlights. It’s crucial that an employer considers all circumstances of the case, including the employee’s individual circumstances, and assesses it on its own merits before deciding on an appropriate sanction.”
Jabbar, who is of Pakistani heritage, also brought claims for age and race discrimination, but these were dismissed. The bus driver had alleged that one of the real reasons National Express West Midlands chose to dismiss rather the discipline him was because he was a long-standing member of the company’s final salary pension scheme.
A remedy hearing is due to take place on 26 July.
Madi Pilgrim, UK HR Director at National Express, said: "National Express West Midlands welcomes the tribunal’s ruling that no discrimination took place on the grounds of age or race. Going through a red light is not only illegal but potentially fatal and National Express will continue to take the safety of its passengers, staff and other road users extremely seriously as a matter of the highest priority. The tribunal legal process remains ongoing and National Express West Midlands is carefully considering its available options."
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