Sam Beech had pulled away from a bus stop when a cyclist tried to overtake him and banged his wing mirror. The cyclist then pedalled in front of the bus and gestured to the driver. Camera footage played during last month’s tribunal showed the bus then accelerating to 19mph, while the cyclist was in front, before the collision took place.
The cyclist was injured and taken to hospital as a result of the incident which happened shortly after 8.30pm on September 21, 2019.
Mr Beech, who represented himself in proceedings, claimed he was “already committed” to accelerating the bus and that he tried to brake and swerve to avoid the cyclist who he says lost his balance and fell into the vehicle.
The 39-year-old also said the cyclist was under the influence of alcohol and was not wearing reflective gear, which he said had a bearing on events. Police said previously that officers investigated the incident and that, although no criminal proceedings took place, “both parties were spoken to regarding their conduct.”
But the lawyer representing Lothian Buses, Will Rollinson, said Mr Beech should have braked when the cyclist struck his wing mirror and that the subsequent acceleration was “reckless” conduct. Mr Rollinson also stressed that his employer did not need criminal fault and simply needed to trust its driver and, in this case, it could not trust Mr Beech.
A judgement sent to both parties this month by employment judge Amanda Jones confirmed that Mr Beech (the claimant) was not unfairly dismissed.
It read: “The claimant had 11 years’ service and there were no live disciplinary sanctions on his file. The claimant suggested that a final written warning would have been a more appropriate sanction.
“However, the tribunal concluded that given the respondent (Lothian) had a genuine belief that the claimant had acted in a dangerous and unacceptable manner, and given the nature of the claimant’s duties where he worked unsupervised and was required to ensure the safety of passengers and other road users, the decision to dismiss the claimant was a reasonable one.”
The judge did highlight some concerns about the extent of investigation carried out before Mr Beech’s disciplinary hearing, namely that there was no attempt to contact police or traffic officers who attended the incident to establish if the cyclist had been under the influence.
In the aftermath of the collision, footage from the bus also showed Mr Beech leaving the vehicle - after waiting inside the 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 said this showed “utter disregard” to the cyclist’s welfare and amounted to gross misconduct.
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.”
He also 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.
But employment judge Jones said Mr Beech, who now works for First Bus, failed to raise this point during internal disciplinary proceedings.
Ms Jones described Mr Beech’s evidence as “at times contradictory and unclear” and occasionally “evasive” as he did not answer some questions in cross examination.
The judge said his position before the tribunal over the incident which led to his dismissal was “often in conflict” with the position he adopted during the disciplinary and appeals process. For instance, she highlighted that Mr Beech had told dismissing manager Louis Ferguson in a minuted meeting that he had “50/50” responsibility for the incident - but during evidence he maintained the cyclist was 100 percent to blame.
By contrast, she said the three witnesses for Lothian Buses were “credible and reliable.” Three managers from the bus company who were involved in disciplinary and appeal proceedings told the tribunal that Mr Beech should have stopped sooner and suggested he accelerated in response to the cyclist’s behaviour.
The judge also did not accept Mr Beech’s claim that he raised impartiality concerns with dismissing manager Mr Ferguson over a grievance allegedly raised against him. Mr Beech had told the tribunal he raised a grievance over a perceived “lack of action” in response to flexible working requests made to help his depression. Mr Beech claimed this was a reason for the company to sack him.
Mr Ferguson strongly refuted any knowledge of this grievance when giving evidence to the tribunal. He also said if the union had been made aware of a grievance, there was no way it would not have been raised.
The tribunal judge concluded that no grievance had ever in fact been submitted by Mr Beech.
The judge said that although in his statement, Mr Beech suggested he had a ‘target on his back’ following an issue relating to a breach of Lothian’s social media policy, and that he was a ‘thorn in the side’ of Mr Ferguson, he did not lead any evidence to suggest there was any other potential reason for his dismissal other than the incident itself.
The report said: “The tribunal concluded that the claimant had been dismissed solely as a consequence of the incident on 21 September 2019, that the respondent had followed a fair procedure in relation to the claimant’s dismissal and that the dismissal had been within the band of reasonable responses.
“The claimant’s claim of unfair dismissal is therefore dismissed.”