A new case relating to the use of mobile phones confirms strong backing for employers who have robust policies in place to combat phone misuse by their drivers and to ensure road safety. In this case the driver lost his claim for unfair dismissal and was separately reported by the employer to the Traffic Commissioner for handling the phone whilst driving.
In the case of Ruparell v East London Bus & Coach Company Limited (“East London BCC”), Mr Ruparell had been employed by East London BCC as a bus driver since November 2005. During his employment he received a number of employment policies, including one covering mobile telephone and radio use and a letter restricting the use of mobile telephones.
East London BCC made it known to Mr Ruparell from the start of his employment that mobile telephone use was not permitted while driving. This prohibition was repeated in a series of communications, including a staff information bulletin in 2006 and a “news flash” sent to drivers in May 2011. Both of these made clear that use of a mobile telephone while the bus was in service or in motion was strictly forbidden.
Over time, East London BCC’s policy on the use of mobile telephones became more restrictive, to the extent that it required personal phones to be switched off when driving, including at bus stops. However, drivers were still permitted to use their mobile telephones at scheduled lay-over points if the engine was turned off, the parking brake applied and such use did not interfere with passengers boarding or alighting or affect the punctuality of the bus service. It was stated that any breach of the rules would be taken to be deliberate and would result in serious disciplinary action, which could include dismissal for gross misconduct.
In October 2013, East London BCC’s Managing Director sent a letter to all bus drivers which stated that a driver should not be seen within the cab area of a bus with a telephone on display, whether or not the telephone was being used at the time and even while the bus was stationary. This rule was reinforced by workplace posters.
On 7th April 2014 Mr Ruparell was driving a bus for East London BCC. He did not feel well and pulled on to the stand at Gallions Reach. This was at the end of the route. There were no passengers on board and the bus was not in service. He switched off the engine, took out his mobile telephone and used it to set an alarm. He then put the phone down next to him in the cab area - and went to sleep!
However, the alarm did not go off. He later woke up abruptly and realised that he had missed his scheduled departure time. He then picked up the mobile telephone while the bus was still stationary on the stand. While still holding the telephone in one hand he started the bus and moved off the stand. He then came to a turning circle. As the bus was moving into this he took both hands off the steering wheel so that he could put the telephone into his pocket. He then put one hand back onto the steering wheel while continuing to secure the telephone with his other hand.
The above events were captured on CCTV.
The late running of the service triggered an official report. In producing the report the CCTV footage was viewed. This revealed Mr Ruparell’s handling of the mobile telephone. As a result, he was suspended from work and eventually summarily dismissed for gross misconduct. East London BCC also reported the circumstances which resulted in his dismissal to the Traffic Commissioner.
Mr Ruparell brought an unfair dismissal claim in the Employment Tribunal.
Employment Tribunal decision
Before the Tribunal, Mr Ruparell sought to argue that there was a distinction between the actual use of a mobile telephone and the mere holding of one, with the latter being less serious than the former. The Tribunal found that to be an artificial distinction.
In considering the seriousness of his breach of the mobile telephone policy the Tribunal found that an aggravating feature was the fact that Mr Ruparell was holding the telephone while driving and had removed both hands from the steering wheel at one point. It also found that it was not necessary for an employer to wait for a situation of real risk or danger to arise before it can enforce its rules. Furthermore, given the nature of East London BCC’s business and the importance of driver safety in public transport, the Tribunal was of the view that East London BCC was entitled to have strict policies in place regarding mobile telephones. East London BCC had gone to considerable effort to make the precise ambit of those policies known to its drivers and, on the facts of the case, the Tribunal was satisfied that Mr Ruparell’s dismissal was “within the range of reasonable responses”.
Although the Tribunal’s decision is not binding precedent, it is a victory for common sense and demonstrates the importance of having appropriate policies in place and of communicating them effectively to staff.
To discuss this or for further information, please get in touch with myself in Cambridge on 01223 411421 or by email at firstname.lastname@example.org, or in Bedford please contact Andrew Buckley on 01234 270600 (email@example.com), and in Milton Keynes, Maria Gallucci (firstname.lastname@example.org) on 01908 202150.