12 September 2017
Disciplinary action: does the penalty fit the offence?
When it comes to workplace disciplinary action, it is vital for employers to ensure that the penalty fits the offence. In one striking case where that certainly did not happen, a bus driver who was unfairly dismissed for shooting a red light after 37 years' unblemished service won the right to substantial compensation (Jabbar v West Midlands Travel Limited).
Mr Jabbar, who is Pakistani, was employed as a bus driver by West Midlands Travel Limited and its predecessors from 1 January 1978 until his dismissal on 8 October 2015. He had an exemplary disciplinary record and had not been involved in any road accidents, or incurred any driving penalties, for 32 years. However, after CCTV footage revealed that he had gone through a red light, he was dismissed for gross misconduct. His employer said that he had committed a serious traffic violation and could not be trusted to drive a bus again.
An Employment Tribunal (ET) acknowledged that Mr Jabbar had broken the law and that what he had done could not be viewed as trivial. However, it was a momentary lapse of concentration, lasting no more than five seconds, in the context of a job that required him to drive on busy city roads for up to ten hours each day.
His length of service could not be ignored, his mistake had caused no injury and it was clear that, in truth, he was one of his employer's best drivers. There was also a disturbing disparity between the treatment meted out to him compared with that of another driver who had caused injury when committing the same offence at almost the same time. He had kept his job and been given a final written warning.
The ET dismissed Mr Jabbar's claims of race discrimination and age discrimination but found that, because of his culture and upbringing and because English is not his first language, he did not engage to his best advantage with the formal disciplinary process. In the ET's view, West Midlands Travel had failed to take due account of those obstacles for him when conducting the investigative and disciplinary process. Whilst this did not amount to race or age discrimination per se, it did amount to an unfairness to Mr Jabbar in the assessment of whether and how he should be disciplined for the error he admitted he had made.
The ET recognised that it was not its role to substitute its own views for those of the employer. However, it found that Mr Jabbar's dismissal was disproportionate and did not lie within the range of reasonable responses open to his employer.
The amount of Mr Jabbar's compensation remains to be assessed.