Unfair dismissal for driving while using a mobile phone

Recently employment tribunals have been asked to consider the fairness of dismissals relating to driving whilst using a hand-held phone. Two cases shed some light on when and how the tribunal will draw the line.

Facts

Ruparell v East London Bus & Coach Co Ltd

A bus driver was dismissed for holding his mobile phone as he exited a bus stand. After being stationery at the wheel and waiting for his scheduled departure, the driver took a brief nap only to wake up suddenly realising his phone alarm had failed. On departure the driver was seen to take both hands off the wheel to put his phone away in contravention of the employer’s rules on road safety. The driver had been alerted to the rules on more than one occasion and was on a final disciplinary warning. The employer then dismissed the driver. The Tribunal subsequently held that the dismissal was in the employer’s range of reasonable responses to such a breach, considering that the employer had a clearly communicated policy on driving with a phone and the driver was fully aware of it.

Whitehead v FirstGroup Holdings Ltd

A long-standing employee was driving his own car into the premises of his employer and was reported using a mobile phone. Following an investigation, he was dismissed. The tribunal held that the dismissal was unfair on the basis that the employer had failed to consider mitigating circumstances such as the employee’s previous good record and the stress he was under at the time.  The employer’s policy on hand-held devices was also not clearly applicable to private vehicles entering the workplace.

Comment

These cases demonstrate that tribunals are willing to look at the whole context of dismissals when considering fairness regarding technical breaches of employer policy, including past records of employees and an employee’s individual circumstances.  Employers should be careful to ensure that they are very clear on what is considered acceptable or not and policies are clearly communicated to staff.  More importantly the Whitehead case demonstrates that employers must give regard to an employees’ long service and a clean disciplinary record when contemplating dismissal.

For more information on these types of cases, or how to avoid decisions to dismiss being potentially unfair, please contact a member of the Employment Team.

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