From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Baljinder, a bus driver, and his disciplinary.
Baljinder has over 15 years of unblemished service.
Whilst working he was abused and physically attacked by a passenger, who reached through the hole in the perspex divide and pushed her ticket roughly into his left hand. This left him shocked and he described the assault happening so quickly that he couldn’t explain how his right hand got hurt.
This assault was witnessed by another passenger and she gave him her contact details.
On the advice of his manager he sought medical treatment and whilst recovering from the ordeal, he called in sick. On returning to work our client was called to an investigatory meeting and they watched the CCTV footage together. His manager then made the claim that Baljinder was not attacked in the way he said he was and that he had made a fraudulent claim for sick pay. The CCTV evidence didn’t really show what had taken place.
The investigator at no stage contacted the witness and the matter was escalated to gross misconduct disciplinary, as a result of which he was ultimately dismissed. Although Baljinder told his employer about the independent witness, she was never contacted.
Baljinder unsuccessfully appealed and looked for employment law solicitors. We immediately wrote to the employer letting them know there would be a Birmingham employment law tribunal claim and requiring them to secure the CCTV evidence.
Baljinder ought to win his claim. It may be that the witness didn’t see how his right hand was injured, but the point is that there was no real evidence that he had lied about how his injury had been caused. It is a serious claim to accuse someone of lying for money and serious claims require serious evidence.
What matters in an unfair dismissal case like this is whether the employer reasonably believed that the employee was lying. The actual truth of how he got hurt is not important to the question of whether he wins his case. But it is important to the question of how much compensation he is awarded. If the passenger shows he lied, then he won’t receive much compensation. If she backs him up, then he may be awarded up to a year’s salary. If she didn’t see what was going on, then it is an open field – the judge will have to decide on the evidence what happened and we believe that an employment tribunal would side with someone with over 15 years’ service and no history of lying.
The employer in this case messed up. Managers who conduct disciplinaries need to follow the ACAS code of practice on Disciplinary and Grievance. We will now have to take this matter to the Employment Tribunal as the Employer will clearly not do the right thing and admit that they have not followed the correct procedure and due care and have dismissed this employee unfairly.
*Our clients agree to the use of their stories but all names have been changed for anonymity
Images courtesy of Elliot Brown, used under CC