The lawyer representing Lothian Buses, Will Rollinson, told an employment tribunal the company’s former driver Sam Beech should have braked when the cyclist struck his wing mirror while overtaking the double decker as it pulled out from a bus stop in Leith Walk.
Camera footage from the front of the bus played to the tribunal this week, showed the cyclist then moved in front of the bus and gestured to Mr Beech who sounded the horn. Mr Beech claims this was when he first realised a cyclist had struck the vehicle as he had only heard a “loud bang” moments before.
Mr Beech, representing himself in proceedings, claims he was “already committed” to accelerating and that the longer triple axle bus he was driving has a “quick response” to acceleration, and that the cyclist lost his balance and fell into the bus as he braked and swerved the bus to avoid him.
But Mr Rollinson also played footage which showed the vehicle’s speed increase to 19mph while the cyclist was in front of the bus, prior to the collision, which he described this as “reckless” conduct.
Mr Beech, who says he had a clean driving record and worked for Lothian for 11 years, said he expected the cyclist to carry on rather than brake. He also said police cleared him of any wrongdoing because the cyclist was “under the influence of alcohol” and was not wearing reflective gear and had no lights. He stressed this had a bearing on events.
A police spokesperson confirmed on Wednesday that officers investigated the incident and that, although no criminal proceedings took place, “both parties were spoken to regarding their conduct.”
During his final submissions to the tribunal on Wednesday, Mr Rollinson said: “The claimant (Mr Beech) says police were not prosecuting but he fails to understand the employer does not need criminal fault and simply needs to trust its driver and they could not trust Mr Beech.
“It’s not for police to decide whether Mr Beech keeps his job.
“The outcome of this could have been far worse and potentially fatal.
“The claimant was in charge of a double decker bus and trained to deal with hazards and knew cyclists were vulnerable and knew a cyclist was there at his side and in front of him, but chose to continue to accelerate towards the cyclist, acknowledging he did not know how they would react. He put another road user’s life in jeopardy and this was intimidation.
“I would submit no reasonable employer would have stepped back from dismissal because no reasonable employer would ever allow a driver to put other lives at risk again.”
Three managers from the bus company who were involved in disciplinary and appeal proceedings, told the tribunal on Monday that Mr Beech should have stopped sooner and suggested he accelerated in response to the cyclist’s behaviour.
Mr Beech told the tribunal, heard over three days by judge Amanda Jones, he should have been given a final written warning and the offer of further training instead of being fired.
Mr Rollinson also played CCTV footage from the bus in the aftermath of the collision which showed Mr Beech leaving the vehicle - after waiting inside his driver’s cab for nine minutes - and using his phone to take pictures of the bicycle on the road before checking if the cyclist was okay.
Mr Rollinson suggested Mr Beech showed “utter disregard” to the cyclist’s welfare and that this amounted to gross misconduct. Mr Beech denied this.
The lawyer suggested Mr Beech knew his behaviour was reckless and did not want to “face the music,” and said his response during questioning on Tuesday that the cyclist did not end up worse off in the collision was “demonstrative of his callousness.”
But Mr Beech said he waited in the cab to radio control and call 999. He said an off duty nurse had been keeping him updated until police and paramedics arrived and that another man came to him and told him the cyclist was sitting up and “having a cigarette.”
The 39-year-old father also said during his own final submission on Wednesday that he could see the cyclist was okay from his cab window.
Mr Beech insists drivers were also previously advised by union representatives, following an incident earlier that year in which a bus driver was assaulted in Great Junction Street, that they should not get out of their cab if the driver deems the situation could be aggressive, which he did in this case.
Mr Rollinson said witnesses for the bus company said he was not in any physical danger and that the injury to the cyclist “trumped that.”
The tribunal heard the cyclist suffered a shoulder injury and was taken to Edinburgh Royal Infirmary for further examination following the collision at around 8.30pm on September 21, 2019.
Mr Rollinson said Mr Beech’s claims that he followed union advice by staying in the cab, that the bus was sensitive to acceleration and that the cyclist fell into the bus, were not put to any of the managers who dealt with disciplinary and appeal proceedings at the time.
Mr Rollinson also told the tribunal that Mr Beech told dismissing manager Louis Ferguson in a minuted meeting that he had “50/50” responsibility for the incident, suggesting this gave his managers the impression he had equal culpability.
Mr Beech, who lives in Edinburgh and now drives for First Bus, said he recalled telling Mr Ferguson he could have “held off” but that it all happened so quickly and he was very stressed about the incident at the time.
Mr Rollinson also said there was no record in the dismissal or appeal meetings of Mr Beech raising impartiality concerns with dismissing manager Mr Ferguson over a grievance allegedly raised against him.
Mr Beech told the tribunal on Monday he raised a grievance over a perceived “lack of action” in response to flexible working requests made to help his depression. The need to alter his working pattern was highlighted in a doctor’s note shown to the tribunal. Mr Beech claims this was a reason for the company to sack him.
But Mr Ferguson strongly refuted he had any knowledge of this grievance when undertaking disciplinary proceedings. He told the tribunal if the union had been made aware of the grievance, as Mr Beech said, there was no way it would not have been raised.
On Tuesday, Mr Beech also confirmed that he had fallen out with union representatives during the proceedings after being asked about the matter by employment judge Jones.
On Wednesday, Mr Rollinson also said it did appear at one point on Tuesday that another person was with Mr Beech prompting him to give evidence, which was being given to the tribunal via video link.
Mr Beech denied this under oath but Mr Rollinson believes he lied. In his own final submission, Mr Beech says the judge did not hear this herself.
In his summary, Mr Rollinson said much of Mr Beech’s evidence was “inconsistent” and that some of it was “untruthful.”
The employment judge will now consider evidence and submissions and is expected to reach a determination within the next three weeks.