A Dundee bus driver whose rude gesture at a bus spotter was seen on BBC’s Have I Got News For You was unfairly dismissed.
An employment tribunal has ruled that National Express Dundee was wrong to sack Scott McDonald for raising his middle finger at the enthusiast who was photographing his vehicle.
The incident should have been treated as a “one off” and although the driver’s behaviour was stupid he should not have been sacked.
Mr McDonald, 29, was driving one of the company’s new hybrid buses in Commercial Street in August last year when the omnibologist took the picture. The driver gave him the “bird” sign by raising his middle finger.
The spotter reported the episode to the company, whose acting assistant operations manager Philip Bowen called Mr McDonald to a “fact-finding” meeting.
Mr McDonald said he had made the gesture because he didn’t like his photograph being taken by strangers. He admitted his conduct was not befitting that of a professional PCV driver and he had tarnished the company’s image.
He said he would not repeat the incident. Mr Bowen told him he was being suspended on full pay and that the matter was being referred to the disciplinary procedure.
At a meeting on August 23, Mr McDonald said he was suffering from issues outside work, had been feeling edgy and the incident was a stupid mistake.
With the company’s assistance he had attended a counselling session but felt he needed more.
He apologised for the incident, was remorseful and pledged there would be no repeat, and said he would apologise to the complainant if necessary.
Mr Bowen decided to escalate the case to a level where it would be considered by a manager with the authority to dismiss.
He was later told by a friend the photograph had appeared on the BBC’s satirical quiz show featuring Ian Hislop and Paul Merton.
At the higher level hearing on August 29 conducted by Paul Clark, then operations manager, Mr McDonald referred to his personal issues and said he was “pushed over the edge”.
Unite branch chairman Robert McKelvie, who accompanied Mr McDonald, referred to a similar case in which a driver who had given a passenger a V-sign was sacked but later reinstated after an appeal.
Mr Clark adjourned the meeting to check McDonald’s employment file and learned that he had not attended further counselling, although there was a doubt about him having received a letter about such sessions.
He reconvened the meeting and said Mr McDonald had brought the company into disrepute and was being dismissed. Mr McDonald appealed on grounds of excessive severity but managing director Phil Smith ruled that the dismissal would stand.
Tribunal judge Ian McFatridge said Mr McDonald’s behaviour had been unacceptable but the company’s disciplinary policy did not specify that making hand signals at drivers or pedestrians would be viewed as serious or gross misconduct leading to dismissal.
Mr Smith was incorrect when he stated Mr McDonald’s gesture could be categorised as “violence towards another person during the course of their duties or while attending work”.
Mr McFatridge said the fact that Mr Smith had given evidence to this effect indicated “he had to some extent lost any sense of proportion over the incident”.
The gesture was unacceptable and stupid but not at the most serious end of the spectrum.
Mr McDonald should have been subject to some disciplinary penalty but dismissal was outwith the band of reasonable responses.
Mr McDonald has since gained another job and the tribunal ruled that his compensation should be reduced to £5,516.47 because of his contributory actions.
He said at the weekend: “I am happy that I won my case and that I’ve got back everything I lost in the last year.”
A spokeswoman for National Express Dundee said the company were aware of the judgment.