Operator loses appeal against driver who drove into flood water

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Bluebird Buses Limited, which fired one of its employees after he drove into a patch of flooded road, has lost an appeal to overturn a judgement of unfair dismissal and wrongful dismissal.

According to People Management, the Employment Appeal Tribunal (EAT) found that the company was wrong to argue the employment tribunal had fallen into a ‘substitution mindset’ and formed perverse judgements over its dismissal of the driver.

Piotr Borowicki was employed at Bluebird Buses in Aberdeen between 28 April 2007 and 14 January 2016. In January 2015, he drove his bus into a patch of flooded road during bad weather in rural Aberdeenshire, having believed he could drive through the water.

The tribunal heard he had underestimated how deep the flood water was and became stranded in the middle of the road as the bus began to float and fill with water.

No passengers were on board, but on the advice of the police, Borowicki was forced to break a window in order to escape. He was dismissed for gross misconduct following the incident, with Bluebird Buses arguing that as a professional driver he should have had the foresight to act differently.

However, the tribunal found that a reasonable employer would have judged Borowicki’s actions on his behaviour in the moment, particularly as Bluebird had failed to provide him with training or advice on the factors to consider when encountering a flooded road.

They were also unable to find that Borowicki’s behaviour “met the contractual test of amounting to a repudiation of the fundamental terms of the contract,” and concluded it would be wrong to classify his actions as gross misconduct, describing them as “an error of judgment on his part, although a serious one.”

It was concluded that a reasonable employer could not have characterised the behaviour as gross incompetence, or found it reasonable enough to summarily dismiss Borowicki. The tribunal found he had been both unfairly dismissed and wrongfully dismissed, and awarded him a monetary award.

Bluebird Buses appealed the decision, contending that both tribunal judgements of unfair and wrongful dismissal were perverse, and that the tribunal had fallen into a ‘substitution mindset’ – by projecting its own views onto events rather than relying solely on facts – in reaching its conclusion on whether or not the dismissal was unfair.

However, this was rejected by Judge The Hon. Lady Wise, who found an argument of perverse judgement must be supported by signs that the employment tribunal had proceeded from its own findings of fact rather than the employer’s findings, which the EAT could not establish.

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