Gross misconduct or an error of judgement?

October 26, 2018
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Mr Piotr Borowicki (B) was employed as a bus driver in Aberdeenshire between April 2007 and January 2016. In January of 2015 in bad weather B drove his bus through floodwater. There were no passengers on board and B, who has several years bus driving experience under his belt, believed that he could drive through and clear the flood.

Unfortunately, B got stuck, and his bus filled with water and a local resident attempted to help him. This was unsuccessful. On the advice of police B was forced to break a window to escape.

The bus company commenced disciplinary action and B was subsequently dismissed. The bus company stated that as a professional bus driver he should have had the foresight to act differently i.e. not enter the flood water. B claimed unfair dismissal and wrongful dismissal at the tribunal.

The tribunal ruling

The tribunal noted that the bus company had failed to provide B with specific training or advice on what to do when encountering floodwater. It upheld his claim and further found that a “reasonable employer” would have judged B’s action on;

  1. his behaviour in the moment
  2. the time he had to react to the circumstances ahead of him
  3. training and experience.

Unhappy with the outcome, the Bus company appealed to the Employment Appeal tribunal (EAT).

At the EAT the bus company argued that the tribunal unfair dismissal decision was total nonsense. Its basis for this argument was that the tribunal had “protected its own views on two events, rather than relying solely on the facts”. The EAT rejected the bus company’s appeal.

The EAT also agreed that B’s actions, although a serious error of judgement on his part, were not enough to fundamentally breech the employers trust and confidence in him. As his actions didn’t pass the important threshold, the employer had failed to provide adequate and appropriate training about what to do in flood situations.


Whenever you are considering disciplinary action, you can not only look at the employee’s actions and failures. You must take into account any omissions on your part, such as not providing appropriate or refresher training. Even if an employee has several years’ experience in a job role, any failures on your part could easily give them a defence. You cannot rely on the fact that they ought to known better.