In a widely reported case a bus driver has been sacked for "eating a grape” whilst sat in ths cab of his stationary bus.
The matter si still making its way through the internal appeals procedure of the bus company, and the facts may have been distorted in the media reporting - but it does beg the question of what the prudent employer is to do when faced with minor infractions of rules imposed for reasons of health and safety.
Let's be clear: none of us want to ride in a bus while a driver wrestles his way around a baguette, or swigs a milk shake. Rules which say drivers must not eat while on duty no doubt have such scenarios in mind - and an employer without such rules would be held up to condemnation at best, and even prosecution, if a tragedy arose by reason of a driver's inattention to the road caused by an ill-considered burger. (Can a burger ever be anything but ill-considered - subject of another article perhaps).
But rules set down for good reason should surely be applied with common sense.
How is an Employment Tribunal likely to deal with such a case? It should be remembered that until now a tribunal hearing an unfair dismissal case has been made up of three people. One is a lawyer - an Employment Judge - but the other two are lay people drawn from the world of work. One broadly comes from an employer back ground, the other from an employee/union background.
The phrase "industrial jury” is not much used now, but it reflects the fact that the test which a tribunal is to apply is not to substitute its own view for the view the employer took, but to recognise that different employers may take a different view about the same situation. in short, for the same offence, one employer might sack, the other might not. The tribunal's job is to decide whether the decision to sack in an unfairness claim brought before it falls within the band of reasonableness. If it does not, the decision is unfair. The lay members inform that decision, introducing "reality” to the law.
Two thoughts occur: as the mood of the country swings against "elf & safety” - with government snarling about red tape (while doing very little to cut it) - the industrial jury might be expected to reflect that change and regard a dismissal for minor infractions of rules - where there is no real threat of danger - as unfair.
But, as government has in the interests of speed, decided to remove lay members from most unfair dismissal cases, will the Employment Judge be more or less willing to reflect - or indeed even be aware of - changes in employer's attitudes to minor infractions of rules.
One might think that judges - traditionally seen as reactionary/out of touch - would be more inclined to hang/flog/sack. But research suggests that when confronted with criminal cases the public tend to be more reactionary and impose harsher penalties than do judges. If that translates to Employment Tribunals, government may find decisions going against employers which, at present, would be held fair.
Tim Gray is a partner at Clough & Willis and who heads the firm's Litigation Department.
