Two repair contractors who were fired for gross misconduct after they were discovered to have used company vehicles for personal purposes were unfairly dismissed, Birmingham Employment Tribunal has ruled.
While the pair were at fault for misusing the vans, the tribunal found their employer failed to thoroughly investigate the issue before dismissing them.
Mr Genus and Mr Kelly had worked at national property solutions provider Fortem Solutions for more than 20 years. They were contracted to perform property repairs for Birmingham City Council, for which they were each provided with a company van.
The company’s driver and vehicle policy dictated that the vans were only provided for carrying out work duties, and must not “under any circumstances be used for private purposes other than for ordinary commuting. Unauthorised use of a company vehicle is deemed to be gross misconduct and may result in dismissal.”
Fortem Solutions launched an investigation into Genus and Kelly in February 2017 over their use of the vans, which were fitted with tracking devices, following an anonymous complaint about an unrelated issue.
The tracker information showed that Genus had used his company van to travel to his mother’s house multiple times between 16 January 2017 and 17 February 2017, which was on his route home. Between the end of January and March 2017, Kelly had taken his van to multiple locations, including to watch his son play football while on call and to go to the supermarket.
During their subsequent disciplinary hearing, Genus and Kelly denied seeing the driver and vehicle policy, but the tribunal judge ruled this was unlikely to be true. Previous statements made by the pair suggested they simply found the guidance confusing and evidence showed a paper copy of the statement had been mailed to their home addresses.
During his disciplinary hearing, Genus said he did not think the personal use of the van should be an issue if his route was on his way home, as long as he “wasn’t taking advantage”. He additionally cited his father’s recent death as a factor requiring him to make visits to his mother.
Kelly said he found the questions about journeys in the van “really tedious,” adding “95 per cent of the workforce do stuff on their way home”. He maintained other managers had told him he could use the van for personal use out of hours, but was unable to name them.
Both Kelly and Genus were dismissed for gross misconduct. They appealed the decisions on the grounds that they were not given any opportunity to correct their actions, and that they had not clearly understood the policy. They additionally raised that neither of them had previous disciplinary sanctions. However, the appeals were rejected, and Genus and Kelly were dismissed on 11 July 2017.
The tribunal accepted the reason for the dismissal was misconduct, and that Fortem Solutions had a genuine belief in that misconduct. However it found the policy around company vans was unclear and provided no explanation of ‘private’ and ‘business’ use. When combined with the length of service and clear disciplinary records of each man, and the failure to properly investigate on the part of the employer, the dismissal was deemed unfair.
“This outcome reminds employers of the importance of ensuring that their dismissal decision is within the range of reasonable responses. The tribunal points out that the employer should have considered the employees’ length of service and previous clean disciplinary record – this is often a material factor in a decision on reasonableness,” said Andrew Willis, head of legal at CIPD HR-Inform.
“Although the tribunal did not feel that the failure to have clear and unambiguous rules on business use and private use was determinative, this is something that employers should take away from this case. If employees are not given enough information to understand what is right and wrong, can they really be held as having broken the rules?”
However, the tribunal also ruled any damages Kelly and Genus received should be reduced, as the pair had contributed to their dismissals by knowingly contradicting the company policy on vehicle use.
Fortem Solutions did not respond to People Management’s request for comment.