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Beware how you use vehicle tracking data
Do you use tracking devices to check that your employees are not breaking rules over the use of company vehicles? If so, you’re not alone. But one company found that dismissing two employees for gross misconduct after discovering that they had used their company vehicles for personal purposes was ruled to be unfair by an employment tribunal.

While the pair were found to be at fault for misusing the vans, the tribunal concluded that their employer had failed to investigate the issue thoroughly enough before dismissing them.

Both employees, Mr Genus and Mr Kelly had worked at 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 stated that the vans were only provided for carrying out work duties, and that they 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 lots of times between in January and February 2017, which was on his route home. They found that between the end of January and March 2017, Kelly had taken his van to several different locations, including to watch his son play football while on call as well as going to the supermarket.

During their disciplinary hearings, Genus and Kelly denied seeing the driver and vehicle policy, but the tribunal judge ruled this was unlikely to be true as the employer was able to show that a paper copy of the statement had been posted to their home addresses. Previous statements made by the pair suggested that they simply found the guidance confusing

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, provided that he “wasn’t taking advantage”. He also 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 the fact that neither of them had any 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.

In this case, the tribunal ruled that although they found the employees to have been dismissed unfairly, 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 usage.

So what does this mean for you and your business? It is important to remember that when dismissing someone, it has to be within the range of reasonable responses. You need to consider an employee’s length of service and previous disciplinary record as these factors should be taken into account. You should also look at your policies and procedures – have you been clear enough about what it means? Perhaps you could include some examples so that there can be no argument as to what private and business really means.
Posted on 24 Aug 2018

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