Public reaction to the recent case of Hehir v Metroline Ltd (6018181/2024) has been fierce, with national media outlets describing bus driver Mark Hehir as a hero, and politicians have publicly condemned Metroline’s decision to dismiss him. Yet the tribunal ultimately upheld that dismissal as fair. This case is a useful reminder of how tribunals will consider if a misconduct dismissal was reasonable on the part of an employer.

The Facts

In June 2024, bus driver Mr Hehir pulled into a bus stop when a man pushed past a female passenger, snatched her necklace, and fled the bus. Hehir chased the thief, recovered the necklace, and returned to the bus. Shortly afterwards the thief also returned. What happened next is disputed, but what is not in dispute is that Mr Hehir punched him, knocking him unconscious, and restrained him for approximately 30 minutes until the police arrived.

As part of their investigation, the police reviewed the onboard CCTV evidence of the incident and concluded that Hehir had used proportionate and necessary force in self-defence. They took no further action. Metroline, however, reached a different conclusion.

Metroline’s Disciplinary Allegations

After reviewing the same CCTV footage, Metroline argued that Mr Hehir had:

1. Brought the company into disrepute;

2. Assaulted and injured a passenger; and

3. Failed to follow safety procedures when leaving the bus unattended.

Metroline also took the view, contrary to the police, that the thief had later returned to the bus with the intention of apologising, and that Mr Hehir’s punch was unnecessary and excessive. Consequently, the disciplinary officer dismissed him for gross misconduct. An appeal officer later upheld this sanction

The Tribunal’s Role

When it considered the case, the tribunal emphasised that its function was not to decide how it would have handled events or substitute its own decision for the employer’s. Instead, the tribunal will ask itself a series of questions to decide if the dismissal fell within a range of reasonable responses open to a reasonable employer. Firstly, it will consider if the employer genuinely believed that Mr Hehir had committed gross misconduct. If the reason was misconduct, it will then ask itself if Metroline had reasonable grounds for that belief and, finally, it will consider if the employer had conducted a reasonable investigation. If the answer to all these questions is yes, the dismissal will be fair, even if the tribunal might have personally reached a different conclusion.

This test lies at the core of unfair dismissal claims involving misconduct and highlights how much discretion employers retain. If a tribunal does substitute its own view for that of the employer, it runs the risk of a party bringing a successful appeal to the Employment Appeal Tribunal, which Metroline successfully did in an earlier case involving another bus driver (Metroline Travel Ltd v Mr Taylor [2025] EAT 4).

The Tribunal’s View of the Evidence

As part of the proceedings, the tribunal considered the CCTV evidence that the disciplinary and appeal managers reviewed as part of the disciplinary and appeal processes. It ultimately concluded that the disciplinary and appeal managers had each reached a reasonable and cogent interpretation of the footage. Despite extensive cross examination of the disciplinary and appeal managers about the contents of the CCTV, the tribunal concluded that their interpretation of the CCTV evidence remained consistent.

However, the reasoning provided in the written judgment on this point was notably brief. Despite the controversy surrounding the opposing interpretations of the footage, the tribunal offered limited explanation about why Metroline’s view was reasonable, for example why its conclusion differed so markedly from the conclusion that the police had reached based on the same CCTV footage.

The Safety Breach: Misconduct or Gross Misconduct?

Metroline also relied on Mr Hehir’s decision to leave his cab and chase the thief, contrary to his training and Metroline’s policies and procedures covering safety incidents. In its decision, the tribunal accepted that Metroline was entitled to treat this breach as gross misconduct, emphasising that employers are best placed to judge the seriousness of such matters.

However, critics of the decision observed that the tribunal offered limited analysis of why treating the breach of the safety protocol as gross misconduct was reasonable, particularly given that Metroline’s policy allowed them to treat a breach of the safety protocol as misconduct or gross misconduct depending on its seriousness. In its judgment, the tribunal did not really address the point of why a reasonable employer would regard the conduct in question as gross misconduct, especially considering Mr Hehir’s good intentions.

Conclusion

Even though many reasonable observers may regard Mr Hehir’s actions as well intentioned and laudable, a tribunal in an unfair dismissal case will simply ask itself whether the decision to dismiss fell within a band of reasonable responses. In other words, would another employer armed with the same facts potentially reach the same conclusion?

In this case, Metroline had conducted a thorough and reasonable disciplinary process (including an appeal), considered the police view, and applied its policies. The tribunal therefore found the dismissal fair.

The case confirms that, even if a tribunal judge personally empathises with the way a claimant behaved, he or she cannot substitute their own personal view for that of the reasonable employer in misconduct dismissals.

This means that employers enjoy wide discretion, as long as they:

· Investigate properly

· Act consistently with their policies

· Reach conclusions that a reasonable employer could have reached. For employees, the case is a reminder that well-intentioned actions can still breach employer policies,and that breaching those policies can justify dismissal even in circumstances which much of the public may regard as unjust or harsh.

Please note the contents of this article do not constitute legal advice. If you require any further information or if you would like our assistance, please contact us at employment@berrysmith.com or on 02920 345 511.