Suspicious Minds
We have had our suspicions that one of our van drivers is using his vehicle for personal use during work time. We have trackers on the vehicles so I told his manager to deliberately tell him that the tracker was not working on his vehicle. Sure enough we have caught him taking the vehicle off for unauthorised journeys, so I have told the manager to now sack him for gross misconduct.
The subject of tracking devices is a difficult one from a legal perspective but also how it impacts on the ‘psychological contract’ between employers and their employees. The good news is that you appear to at least have a policy so that suggests he knew that it could be used to monitor his movements. There are two issues you need to be aware of:
1. You obtained information on his unauthorised journey by deception
2. You moved straight to disciplinary action before investigating
Your deceit potentially makes his dismissal unfair because you have tricked him into his conduct. Also you have no proof that it is not the first time he has done this as:
• one day of ‘covert’ tracking him is not a lot of time to asses his conduct
• minor ‘deviations’ might be a one off
It would have been better to monitor over a few days at least to establish a pattern unless his ‘deviations’ were really bad.
Tribunals are all about emotion and they may not be sympathetic to your “sting operation” ie lying tactics, especially if he is both a long service employee and this is the first time he has done something wrong. They may conclude that your actions and subsequent dismissal was not the acts of a reasonable employer.
You ought to have a two stage process in place, with an investigation before reaching a conclusion. The investigation may show that there was a reasonably good explanation e.g. he was stopping for a newspaper or going for fuel etc. So the investigating manager (preferably not the same as the disciplining manager) needs to look further into the matter before reaching a conclusion as to whether disciplinary action should be considered or not.
You have two options :
1. If it is not too late you could monitor for a bit longer, then invite him to an investigation meeting. Depending on the severity of his actions and his reaction you might then consider inviting him to a disciplinary hearing, with dismissal as a serious option. Bear in mind you will still have an uphill battle convincing a Tribunal that you are not just as dishonest as he is. Tribunals are subject to lots of case law but they have a way of doing what they think is right and that often comes down to finding for the party they find the most likeable and believable.
2. If he is already dismissed then you either need to re-instate on appeal (with a final written warning) or make sure that everything else is done properly at appeal to increase your chances of defending your actions should the employee decide not to go quietly!
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for proper advice.
