While we all worry about the implications of reducing the qualifying period for unfair dismissal it is perhaps worth thinking about what the right not to be unfairly dismissed actually amounts to. 

I was out with friends last night who mentioned the recently reported case of a bus driver dismissed for chasing after and ‘assaulting’ someone who has stolen a necklace from a passenger. The driver had claimed unfair dismissal and had lost despite being widely acclaimed as a hero. My friends were very much on the side of the bus driver. I made my usual noises about how the press tend to give a very one-sided view of these cases and that it was important to read the decision itself. I may also have tried to explain the range of reasonable responses test – which always goes down well on social occasions. 

I have now read the Tribunal decision and am left feeling pretty dissatisfied with it. I want to look at what the Tribunal found and the issues I have with its conclusions. But I also want to look at what the case tells us us about the law of unfair dismissal and way Tribunals approach it. 

The case is Hehir v Metroline Ltd and I am taking all of my information from the decision itself. Some facts of the case are clear and others are in dispute. I have no independent knowledge of any of them, I am just going by what the Tribunal have said. 

What happened

In June 2024 Mr Hehir was driving a bus and pulled into a bus stop. A man pushed past a female passenger who was standing by the drivers cab, pulled a necklace from her neck and ran off the bus and away up the road. Mr Hehir got out of the cab and gave chase. He recovered the necklace and returned to the bus. 

It then appears that the thief returned to the bus. There is some dispute about why he did this and exactly what happened next. The result, however, was that Mr Hehir punched him, knocking him unconscious, and then detained him for some 30 minutes while the police were called. 

Mr Hehir was subsequently arrested on suspicion of assault, but was released without charge after CCTV from the bus persuaded the police that the thief had thrown a punch at him and that he had acted in self defence. 

Metroline took a different view of the CCTV footage. Mr Hehir was suspended and an investigation was launched. After watching the footage the investigator referred the matter to a formal disciplinary hearing. There were three allegations:

• Bringing the company into disrepute by assaulting a passenger
• Assaulting and injuring a passenger and
• Failing to protect his own safety and that of passengers by leaving the bus unattended and chasing an assailant 

There are two things that annoy me about the way these ‘charges’ are framed. First of all I think it is a bit much to refer to the thief as a passenger. He had been a passenger of course – but I think by the time he was punched to the ground he had very much forfeited that status. ‘Assaulting a passenger’ is an odd way to describe punching someone who had just snatched a necklace and legged it down the street. 

I also don’t like the allegation of bringing Metroline into disrepute. I think this is a term that should be used much more sparingly than it is. In this case it is inseparable from the assault allegation. We can all agree that assaulting passengers is a bad thing to do and we really don’t need to create a second allegation of gross misconduct arising from the same incident. It artificially inflates the list of charges. The risk of bringing the employer into disrepute is one of the reasons that punching passengers is not allowed.

The third allegation is obviously something that you would expect the employer to look at carefully. I can see why an employer would have rules about how to deal with incidents like this that would forbid drivers from taking matters into their own hands. We’ll come back to this point later.

The key point of dispute in the case was why Mr Hehir punched the thief. He said it was self-defence and he pointed out in the disciplinary hearing that the police had accepted that and that the case against him had been closed. The manager conducting the hearing looked at the same CCTV footage that the police had seen and reached a different conclusion. She found that the thief had returned to the bus with the ‘clear intention’ of apologising to the passenger he had stolen the necklace from – and shaking her hand (an offer she understandably declined). When he attempted to shake hands with Mr Hehir, he was pushed away. Up until then the thief had not been aggressive but he then ‘came towards’ Mr Hehir with a closed fist, but did not punch him. Mr Hehir then pushed the thief again and went on to punch him and rendering him unconscious. The manager conducting the hearing concluded that this punch was ‘intentional and unnecessary’. 

Applying the Burchell test

Now you may have an instinctive opinion about how the employer has viewed what happened. Frankly, so do I. But it is important to bear in mind what the Tribunal’s job is when deciding an unfair dismissal claim. It is not its job to decide what happened or to assess whether or not the employee is actually guilty of the misconduct alleged. The key question is whether the employer has acted reasonably and in the context of a misconduct dismissal we boil that down to a three-point test derived from the classic 1978 case of BHS v Burchell:

• Did the employer honestly believe that the employee was guilty of the misconduct alleged? 

• Did the employer have reasonable grounds for that belief?

• Has the employer conducted a reasonable investigation of the allegations? 

If the answer to all three questions is yes then, provided the employer has followed a reasonable procedure and dismissal falls within the ‘range of reasonable responses’, the dismissal will be fair even if the Tribunal believes that the employee is innocent.  

In this case the key question was whether the interpretation the employer placed on the CCTV footage was a reasonable one – did it give reasonable grounds for the belief in Mr Hehir’s guilt? The fact that the police were satisfied that there was no case for him to answer is one circumstance for the employer to consider, but they are not bound by that finding. An employer might reasonably think that the police were wrong. 

So the Tribunal had to look carefully at the CCTV footage and consider not how it would interpret the events as they were captured, but whether the employer’s interpretation of them was a reasonable one. This is what the Tribunal had to say about that issue (Miss King is counsel for the claimant, Mr Hehir and Miss Caralambous is counsel for the respondent, Metroline):

61. Miss King submitted that the respondent reached a faulty interpretation of th CCTV. Miss Charalambous puts the respondent’s position on this in her closing note, especially paragraph 7. As I have noted, whilst both parties reminded methat it is not my role to decide what happened, they spent a considerable timereviewing the CCTV and cross examining on what it showed. The claimant submitted that I should find that the respondent’s interpretation of the CCTVwas flawed, the respondent that it was correct.

62. My conclusion is that the findings that the Disciplinary and Appeal Managersreached about what the CCTV showed were not faulty and were a reasonableinterpretation of the CCTV evidence. Despite extensive cross examination about the CCTV taken on a frame-by-frame basis Miss Giodric maintained her description of what she saw on the CCTV, as reflected in her disciplinary findings, and her explanation as summarised at paragraph 36 was cogent and reasonable. Mrs Dubarry spoke to the CCTV in answering cross examination and again her answers were consistent with her appeal decision and were reasonable.

And that is all we get on the subject. The tribunal is asking the right question, but I don’t feel any the wiser as to why they found that it was reasonable for the employer to differ so dramatically from the police in their interpretation of the footage. What was it the Tribunal saw in that footage that could support the employer’s interpretation? I’m not sure that this is enough to give grounds for appeal, but If I were Mr Hehir I would feel pretty aggrieved. Tribunal decisions are supposed to be detailed enough for the losing party to understand why they lost and I don’t think this decision does the job. I want more actual analysis of what we see in the footage that could lead a reasonable viewer to think that the thief approached his victim with the ‘clear intention’ of apologising and that Mr Hehir’s punch was unnecessary. 

Gross misconduct

I also have an issue with the way the Tribunal approached the third allegation – that Mr Hehir breached safety rules by going after the thief himself rather than staying in his cab and following what was called the ‘code-red’ procedure. You can see why such rules would be in place. Leaving a bus unattended, unsecured and with passengers on board is obviously something that a bus driver should not do. He knew what the proper procedure to follow was and had followed it in the past. It was brave of him to put himself at risk as he did, but an employer is entitled to instruct employees not to be brave. If they are seen to condone such behaviour that might put pressure on other drivers to behave in the same way and what would happen if one was seriously hurt as a result? I don’t think there is any escaping the fact that Mr Hehir’s behaviour warranted a disciplinary sanction of some sort. But was it fair to dismiss him for it? It was misconduct – but was it gross misconduct? 

The policy the employer relied on did not expressly say that any breach of its provisions would amount to gross misconduct. The position was that a breach might amount to gross misconduct depending on its seriousness. That seems fair enough. Here is the Tribunal’s analysis. 

68. Miss King also submitted that its failure to consider the Safety Allegation as misconduct rather than gross misconduct meant that the respondent’sinvestigation was flawed. I conclude that this submission is not supported by the facts. It is for the employer, with knowledge of its business, to make thejudgment on whether the behaviour constitutes misconduct and, if so, howsevere that misconduct is. I have reminded myself to be careful not to fall into thetrap of substitution. This employer’s policy allows safety issues to be treated aseither misconduct or gross misconduct depending on their severity and in thiscase, the respondent treated the allegations as gross misconduct and foundthem to be gross misconduct with reasons why given at the dismissal stage.

This was a claim of unfair dismissal not wrongful dismissal. In a wrongful dismissal claim – which is a claim for breach of contract – the question is whether the employee should have been given notice and the answer depends on whether they were actually guilty of gross misconduct. The Tribunal has to be make its own finding in that case of whether or not the conduct was serious enough to warrant dismissal without notice. In an unfair dismissal case the question is whether the employer was acting reasonably in concluding that there was gross misconduct for which the penalty should be dismissal.

Even allowing for that distinction, however, I think the Tribunal’s analysis falls short. It seems to suggest that the matter is entirely one for the employer to decide and does not include the caveat that the employer’s decision needs to be reasonable. There is no analysis of why Mr Hehir’s breach of the rule could reasonably be viewed by the employer as amounting to gross misconduct – what were aggravating factors that made the conduct more serious and how did the employer weigh them against the mitigating factors of the driver’s good intentions and bravery? Those issues may have been extensively discussed in the hearing – but there is no analysis of them in the decision itself. 

The limits of an unfair dismissal claim

All I have done is read the Tribunal’s decision. I wasn’t present at the hearing, I didn’t hear from the witnesses and I haven’t seen the evidence. So I am not saying that an appeal would succeed or that there would be a different outcome if the decision was overturned and sent back to a fresh Tribunal. Tribunal decisions have to be considered as a whole and should not be subjected to overly picky analysis of exactly how they have phrased particular points. All the same I think Mr Hehir has good grounds to be dissatisfied with the decision that has been handed down by the Tribunal.

But I think the wider point is just how limited the right not to be unfairly dismissed is. The employer has considerable leeway in deciding whether someone should be dismissed or not and – as this case shows – decisions that might strike many people as harsh or even extreme can be held to be fair. Unfair dismissal is a very employer-friendly right and, for all the talk of radical change, the Employment Rights Act 2025 does nothing to shift that balance.