Shunter dismissed for using mobile phone while driving: conduct dismissal upheld
A shunter with six years' service was fairly dismissed after driving while using a hand-held phone and breaching a red light. The tribunal rejected claims that the dismissal was linked to earlier health and safety concerns.
1 min read · Last updated 18 May 2026
Case details
- #gross-misconduct
- #mobile-phone-while-driving
- #health-and-safety-policy
- #red-light-breach
- #split-second-decision
- #zero-tolerance-policy
Key facts
- The claimant was employed as a shunter from 16 February 2015 to 2 December 2021.
- On 23 November 2021, the claimant drove a vehicle while using a hand-held mobile phone and breached a red light at a site exit.
- The claimant had raised health and safety concerns at a team meeting in late October/early November 2021.
- The respondent dismissed the claimant for gross misconduct, citing breaches of its mobile phone and health and safety policies.
- The claimant's appeal against dismissal was upheld by a different manager.
- The tribunal found the reason for dismissal was conduct, not health and safety activities.
Timeline
-
Employment start
The claimant began employment with the respondent as a shunter.
-
Team meeting
The claimant raised health and safety concerns at a team meeting called by manager Mr Emungu. Exact date not recorded.
-
Incident with damaged trailer
The claimant drove from D2 to D1 while using a hand-held mobile phone and breached a red light at the D2 exit, attempting to intercept a damaged trailer.
-
Suspension
The claimant was suspended pending investigation for breach of company policies.
-
Dismissal
After a disciplinary hearing, the claimant was dismissed for gross misconduct.
-
Claim presented
The claimant filed a claim for unfair dismissal and unlawful deduction of wages.
-
Respondent's response
The respondent contested the claim in full.
-
Hearing day 1
Substantive hearing began at Watford Employment Tribunal.
-
Hearing day 2
Substantive hearing concluded; oral judgment given.
-
Written judgment
Employment Judge Hunt issued the written judgment dismissing all claims.
The legal issue
The tribunal had to decide whether the claimant was automatically unfairly dismissed for raising health and safety concerns or for taking steps to protect a colleague from danger, or whether the dismissal was fair as a response to gross misconduct.
The outcome
The tribunal dismissed all claims. It found that the reason for dismissal was conduct – specifically, driving while using a hand-held mobile phone and breaching a red light – not health and safety activities. The employer's investigation and decision to dismiss were reasonable, and the claimant's appeal was properly considered. No compensation was awarded.
Lessons & takeaways
- Employers can fairly dismiss for gross misconduct even if the employee had previously raised health and safety concerns, as long as the dismissal is genuinely for the misconduct.
- A split-second decision to breach safety rules, even with good intentions, can still justify dismissal if the employer has a zero-tolerance policy.
- A successful appeal does not automatically make the original dismissal unfair; the tribunal focuses on the reasonableness of the initial decision.
- Employees should follow safety policies strictly, especially in roles involving driving, as breaches can lead to immediate dismissal.
When a split-second decision leads to dismissal
The claimant, a shunter with six years' service, was dismissed after driving a vehicle while using a hand-held mobile phone and breaching a red light. He argued that he was trying to intercept a damaged trailer to protect a colleague, and that his dismissal was linked to health and safety concerns he had raised at a team meeting. The tribunal rejected this, finding that the dismissal was solely for gross misconduct.
What the employer did right
DHL Services Ltd had clear policies on mobile phone use and health and safety, which the claimant had been trained on. The investigation was thorough, and the dismissing officer reasonably concluded that the breach was serious. Although the claimant's appeal was upheld by a different manager, the tribunal noted that the original decision was still within the range of reasonable responses. This shows that even if an appeal succeeds, the initial dismissal can still be fair.
What this means for similar claims
This case highlights that tribunals will respect an employer's decision to enforce zero-tolerance policies, especially in safety-critical roles. Employees who breach such policies, even with good intentions, risk dismissal. The fact that the claimant had raised health and safety concerns did not protect him, as the tribunal found no causal link between those concerns and the dismissal. For employers, the key is to have clear policies, conduct a fair investigation, and make a decision that a reasonable employer could have made.
Similar cases
Bus driver dismissed for using phone while driving: insufficient service bars unfair dismissal claim
A bus driver with only 7 weeks' service was dismissed for gross misconduct after using his mobile phone while driving. The tribunal struck out his unfair dismissal and race discrimination claims.
Porter dismissed for pushing security guard: zero-tolerance policy upheld
A hospital porter with nine years' service was fairly dismissed for pushing a security guard who challenged him for not wearing a face mask. The tribunal upheld the employer's decision, finding the dismissal within the range of reasonable responses.
Train driver dismissed after positive cannabis test: zero-tolerance policy upheld
An employment tribunal has ruled that Arriva Rail London fairly dismissed a train driver of 10 years who tested positive for cannabis metabolites in a random drug test, rejecting his defence that the result was caused by CBD oil.
Dismissed for failing to complete drug treatment: a conduct decision that was fair
A Customer Services Supervisor for London Underground was fairly dismissed after being discharged from residential drug rehabilitation for threatening behaviour. The tribunal found the employer's investigation and decision were within the range of reasonable responses.