Mr Genus and Mr Kelly worked in property repairs for Fortem Solutions Limited and as such were each provided with a company van.
They were both dismissed for gross misconduct, namely the private use of a company vehicle. Both men claimed that the distinction between private and business use was confusing in the policy documents that they had been provided with and there was common misuse of company vehicles across the company.
Were Mr Genus and Mr Kelly unfairly dismissed?
Mr M Genus and Mr M Kelly v Fortem Solutions Limited
Fortem Solutions Limited (“Fortem”) is a national property solutions provider. Mr Genus started working with the company in August 1997 and Mr Kelly in August 1994. Mr Genus and Mr Kelly worked on Fortem’s contract with Birmingham City Council in property repairs and as such were each provided with a company van. In 2017, both men were dismissed for gross misconduct, namely the private use of a company vehicle on several occasions.
Fortem began an investigation in to Mr Genus and Mr Kelly after an unrelated complaint was received. They discovered, through the vehicle tracking devices, that both men had breached Fortem’s policy on the private use of company vehicles.
Mr Genus had used his company van to travel to his mother’s house seven times. He claimed it was on his way home. He also stopped off at the shops on another occasion and ran a private errand. Mr Kelly had used his company van to watch his son play football while he was on call, to park near his niece’s house when there was traffic disturbance on his own road, to go to the supermarket on more than one occasion and to go to the barbers.
Both Mr Genus and Mr Kelly had received a copy of the driver and vehicle policy from Fortem which was posted directly to their homes. The policy set out that company vans are provided for the performance of working duties and “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.”
Mr Genus and Mr Kelly each claimed to be confused by the documents and what is deemed as their ‘ordinary commute’ as they claim that when using the van for the so-called private instances set out they had been on their way home from work or on call. Mr Genus said he did not think the personal use was a problem if it was on the way home as long as he “wasn’t taking advantage”. Both men also claimed that they were not the only employees not to go straight home and that “everyone else should be pulled up”.
Fortem rejected both appeals simply stating that the policies were clear and each employee had breached them.
Each brought claims for unfair dismissal, emphasising that they had not been given any warnings, the confusion over the interpretation of the policy documents, their length of service and that they had unblemished disciplinary records.
The Employment Tribunal decided that both Mr Genus and Mr Kelly had been unfairly dismissed. It accepted that Fortem had a genuine belief that Mr Genus and Mr Kelly had used their company vehicles for private use and had therefore been guilty of the alleged gross misconduct. However, the Tribunal found that the investigation undertaken by Fortem was not reasonable in the circumstances.
The tribunal set out that Fortem hadn’t addressed the issue of the claimants’ unblemished disciplinary record throughout their long service to the Company. There was no investigation into what managers may have told operatives about business and private use of company vans, nor into what other operatives understood the position to be. Fortem only performed random checks on vehicle trackers and a more comprehensive investigation was needed to establish whether there was common “misuse” throughout the Company which would have suggested that there was a genuine widespread misunderstanding of the rules. Furthermore, the policy documents did not provide any explanation of what private use was and what business use was.
The Employment Tribunal concluded that the investigation and decision were unreasonable and therefore unfair. However, the tribunal also ruled that any damages Mr Genus and Mr Kelly received should be reduced, as the pair had contributed to their dismissals by contradicting the company policy on vehicle use.
This case touches on a number of issues which are considered when deciding whether a dismissal was ‘fair’.
First, an employer has to have undertaken an investigation that is reasonable in the circumstances. This doesn’t mean that the investigation has to be forensic but if there are any glaring omissions from the investigation, it probably won’t be reasonable. It can be especially awkward trying to justify not investigating something which the accused has flagged up (“others do it all the time”, “managers have authorised the behaviour” etc.). If the investigation is not reasonable, the decision to dismiss based upon such investigation won’t be either.
Second, the conduct itself has to be capable of amounting to gross misconduct if it is a first offence. This will vary from employer to employer but will ordinarily require the misconduct to be so serious as to amount to a fundamental breach of the employee’s contract such that continued employment is not feasible.
Finally, if an employer finds that an employee is guilty of the alleged misconduct, there is still a requirement to consider all the circumstances. An employee with a chequered employment record spanning 2 years and a day can be afforded (marginally) less leniency than a 20 year stalwart with no previous misdemeanours on their record.
All of the above are factors in determining whether a dismissal fell within the range of reasonable responses available to the employer and whether the dismissal was fair in all the circumstances of the case.