Dismissal was not in the “band of reasonable responses”

Two repair contractors who were fired for gross misconduct after they were discovered to have used company vehicles for personal purposes were unfairly dismissed, an employment tribunal has rules. While the employees were at fault for misusing the vans, the tribunal found their employer failed to thoroughly investigate the issue before dismissing them.

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.”

The company launched an investigation over the employees’ use of the vans, which were fitted with tracking devices, following an anonymous complaint. The tracker information showed that one employee had used his company van to travel to his mother’s house multiple times during one month, which was on his route home and that the other employee 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, the employees 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 that a paper copy of the statement had been mailed to their home addresses.

During his disciplinary hearing, one employee 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.

The second employee said he found the questions about journeys in the van “really tedious,” adding that “95% of the workforce do stuff on their way home”.

Both employees 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 complained that neither of them had previous disciplinary sanctions. However, the appeals were rejected.

The tribunal accepted the reason for the dismissal was misconduct, and that the employer had a genuine belief in that misconduct. However it found the policy around company vans was unclear and provided no explanation of  the distinction between ‘private’ and ‘business’ use. When combined with the length of service and clear disciplinary records of each employee and the failure to properly investigate on the part of the employer, the dismissal was deemed unfair.

Employers must always ensure that the dismissal decision is within the range of reasonable responses. The tribunal Judge felt that the employer should have considered the employees’ length of service and previous clean disciplinary record. However, the tribunal also ruled any damages the employees received should be reduced, as they had contributed to their dismissals by knowingly contradicting the company policy on vehicle use.

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