The recent Employment Tribunal case of Genus and Kelly v Fortem Solutions Ltd involved two employees who carried out property repairs and who were each given company vans. Both were long serving employees with prior clean disciplinary records, but were dismissed for gross misconduct for using company vans for private purposes.
Fortem had investigated the employees’ use of company vans, looking at the records from the tracking devices fitted to the vehicles. The results of the investigation suggested that the employees were in breach of company policy regarding private use of company vehicles.
One of the employees had used his company van to visit his mother’s house on several occasions, to stop off at shops on the way home, and on one occasion he had driven 20 minutes out of his way for a private errand.
The allegations against the other employee included watching his son play football while he was on call, going to a supermarket on a number of occasions, and going to the barbers on his way home.
The employees were dismissed following a disciplinary process, and their subsequent appeals were unsuccessful. They brought claims in the Tribunal for unfair dismissal.
Fortem’s driver and vehicle policy said:
“Vans are exclusively for company business and may 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 employees argued that they hadn’t seen the policy, but the Tribunal found that it was the case that the policy was unclear, rather than they hadn’t seen it. The Tribunal also found that the employees had previously received letters stating that “company vans may not, under any circumstances, be used for private travel” and that “private use of a Company vehicle is considered gross misconduct”.
The Tribunal found that the employees had also signed a form when they collected a new company van, which said “I understand that this vehicle has been provided for business use only…”
That all seems pretty clear, doesn’t it? However, the issues that arose included whether company vans could be used for private purposes if the employee was on call, or if they were stopping at a shop on their way home from work.
The Tribunal found that the policy documents did not provide any explanation of what ‘private use’ or ‘business use’ was and that it would have been reasonable for the employer to look into the confusion around whether calling in somewhere on the way home was private use, and whether company vans could be used for private travel while the employee was on-call.
However, the ambiguity of the policy documents did not make the dismissals unfair because, on their own understanding of the rules, the employees in this case did contravene them.
The dismissals were found to be unfair, however, because the Tribunal found that any reasonable employer would have taken the employees’ long service and prior clean records into account. That said, the Tribunal found that the employees’ compensatory award should be reduced because they had knowingly breached the employer’s policy.
Whilst the lack of clarity in the company policy was not the deciding factor in this case, the Tribunal’s comments do highlight the uncertainties that can arise if the rules are not sufficiently clear. We can work with you to draft and review policies to ensure that you have clear documentation which protects your organisation and reduces the risk of dispute – contact us to find out more.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).