Disciplinary

[Clare99q]

Hi

I know a little about employment law but just wanted some reassurance that my understanding of this matter, is correct.

Friend has worked at the same place for 10 years. Clean disciplinary record.

Works in motor industry as a driver, jumps in and out of their cars all day, every day.

One particular day, borrowed a colleagues ‘demo’ car which whilst still the property of the business is for that individuals personal use and they pay the tax - taxable benefit as such.

This individual allowed friend to use the car, during work hours for work activities, albeit only to view Christmas party venue.

Friend, with another colleague in car, has a crash. Friend returns to work and is informed he’ll have to pay for the car to be fixed - fair enough.

Friend now, two weeks later is invited to an investigation meeting. Letter is brief, doesn’t state for what they’re being investigated in terms of which policy they’ve breached or whether it constitutes general or gross misconduct. Just that borrowing the car without relevant management approval led to a RTA. It just stated he is unable to be accompanied - whilst not a statutory right at this point, a little strange.

Today, he goes in to the meeting to be told thar borrowing the car constitutes gross misconduct. Friend is adamant in all the years he’s worked here, he’s never been told of the need to do that. After all, his job requires him to jump in and out of their cars all day and seeking management approval each time would be ridiculous - surely. He is also aware that everyone else borrows one another’s demo cars and no one knew or this requirement.

I’ve told him to ask to see the policy where it’s stated (he’s dyslexic which they’re more than aware of) and where he’s signed to say he saw it.

Any other advice that I could provide him? No a member of a union. He’s unsure of when the hearing will be.

Thanks in advance.

Sorry for drip feed but I have reviewed their disciplinary policy and failing to adhere to company policy is stated as an example of general misconduct - his intention was not malicious nor was the damage to the vehicle.

Can he prove that what he did (excluding the crash) was normal procedure (custom and practice?) and accepted/permitted by managers there?

Well all of his colleagues were a bit shocked to be told by him he was being disciplined for this as they’d all been doing the same for ever....

And am I right in thinking that now he’s had the investigation meeting, no union would allow him to sign up... as in, it’s now too late?

He should not be discussing this with other employees. That is a sackable offence in itself!

” He should not be discussing this with other employees.” Why not? Unless he’s been told not to, he can talk to whoever he likes! And even then, trying to restrict his access to potential witnesses on his behalf would quite possibly render a dismissal unfair.

”That is a sackable offence in itself!” Don't be ridiculous.

” And am I right in thinking that now he’s had the investigation meeting, no union would allow him to sign up... as in, it’s now too late?”

They’d let him sign up but they wouldn’t assist with this issue.

He needs to focus on inconsistency, if everyone else does this without a problem at all, then a change in policy needs to be clearly notified, and breaches dealt with consistently.

Not entirely true, they do have the right to collect evidence for their defence even ask for witnesses ect. If they have not been suspended then it shouldn't be gross misconduct not every company follows this properly but if the 'crime'??!! Warrants sacking you shouldn't be allowed to continue working representing company ect. It seems a bit of an overreaction to an accident to be honest. advice for defence need policy for paying for damages to car often companies will have a policy where the insurance excess must be paid if at fault. Also legal requirement that they give written notice of charge and signed agreement to pay deduction must not take pay for period below mimimum wage usually allow to split over several months I think there's a max per pay period too. They need to provide written policy as it is 'normal' to use any car for business use. Use Google to search a few laws spout these laws at every opportunity in the meeting if poss provide a written defence with points of law included prior to the meeting to as high a hr person as possible keep info factual no emotion they will think you have legal advice and will back down worst case a warning which won't harm them at all unless bonuses can be stopped

Thank you for all helpful comments! @wiaa you mention spouting a few laws, which ones in particular should I advise he look at?

I was aghast when he told me all this, seems like such an over reaction and to state in the letter that his unauthorised use of the care subsequently led to a RTA - so, I’d he’d had permission, the crash couldn’t of happened?

Car*

I guess that the problem here could be concerning insurance. It might have been that only his colleague or another named person were insured to drive that car.

But if thats the case the employer probably had a duty to ensure that all their employees were clear on those rules if they applied.

A further question though you don't address in your posting OP. How did he crash? Was he driving dangerously or without due care or attention, was the RTA his fault? If so then even if he was insured he could still be disciplined. That would seem to be justified. People who drive as part of their job probably have a duty to drive with due care and attention and to protect themselves, passengers or other drivers and pedestrians and the company property. So I think an investigation is quite a reasonable response to this situation.

One particular day, borrowed a colleagues ‘demo’ car which whilst still the property of the business is for that individuals personal use and they pay the tax - taxable benefit as such.

Do you mean it's a company car or pool car?

A previous place I worked had company cars which were assigned to a specific individual and on which the individual paid tax, but they also had pool cars which could be loaned out to employees for defined periods and were "shared around", these bore no tax.

The pool cars could be driven by any employee but my company car explicitly said in the paperwork when I got the keys that only I (and my spouse who was named) could drive it.

@Bouledeneige he works for a motoring group with a largish show room. His role as driver entails delivering the car to the customer, sometimes driving all over the county and some site coordinating ie moving any company car around the site, sometimes on to the adjoining roads where they have permits to park. They’ve not aired anything regarding insurance as he’s insured to drive any car. Had he not of been and they had sited he’d taken the car uninsured, understandably he’d be bang to rights. However, they’re saying he took this specific car without management authorisation. Neither he nor any of the colleagues including the passenger, knew of this ‘rule’. As I say, he’s worked there for 10 years.

He pulled out of a junction and a motorcycle (that was not damaged, they’re not claiming for damages went in to the vehicle my friend was driving. He’s already been told and has accepted that he’ll have to pay for the car he was driving to be fixed. They won’t have to go through insurance, they have their own body shop. So they’ve incurred no cost in that sense.

They’ve not mentioned negligence or his duty to drive with care, again had they of, this wouldn’t be so confusing. They appear to be focusing on this lack of authorisation to drive the car as their reasoning.

@FrangipaniBlue no, not a pool car however many of his colleagues have these demo cars and lend them out. Had this particular colleague been notified of his obligation not to lend the car to anyone else, I’m sure he wouldn’t have. He’s not under investigation.

One thing that strikes me as odd as them not allowing him to be accompanied by anyone at the meeting as if it was truly an investigation meeting they cannot tell him it was gross misconduct in that meeting.

It would be worth him seeing an employment solicitor even if he has to pay for the advice and then pay for them to write a letter to his employer, as they can help stop this escalating very quickly.

If you just quote random laws at them they will quote rubbish back at you and could even get a non-employment lawyer to write some of it to intimidate you. However once they realise that the person helping you is an employment solicitor they normally back down as they don't want an employee to take legal action especially on any protected characteristic.

I have advised people in the past to do this as I was bullied at a job years ago and have had interesting conversations with lawyers then and since on tactics some employers use. In my case it escalated to a tribunal case as I didn't stamp down on it immediately, however other people have retained their jobs so they can retire with a decent pension or been able to resign at the time that is right for them. Unfortunately once an employer starts using these tactics on you do need to move on in the medium to long term.

@colafreezepop I too was surprised that this first letter, clearly stated you are not entitled to be accompanied to this meeting. I know at the investigation meeting it is not a statutory right but I’ve never worked anywhere where they’ve put their foot down on that point. I assuming this would normally be to come across as being as helpful as possible to the individual and wanting to clear up any misunderstanding as soon as possible. It’s interesting that you say that he cannot be told at the investigation meeting that he cannot be informed of it being a case of gross misconduct, why is that?

I will encourage him to write a statement to read out at any hearing or ‘disciplinary review meeting’ as they call it. I will encourage him to state that over the last ten years it has become ‘custom and practice’ for his employees to borrow vehicles in this manner. I will also encourage him to at least try to use the fact he is a known dyslexic and how unhelpful they’ve been by now allowing him to have a companion until this point.

He most definitely needs to move on but as you say, that needs to be in his own time and when he chooses. He’s been a very loyal employee and they’re clearly trying to manage him out.

Apologies for typos, hopefully makes sense. They’re not his employees, I meant to say his colleagues.

I would refer them to the ACAS code of practice as not allowing them someone else at the meeting is a breach of this. It’s a statutory right.

@rainbowshine at the hearing yes, unfortunately not at investigation unless the company policy (which most company’s disciplinary Policies do) states otherwise

I thought that this is a hearing? Anyway the employer needs to show the policy or procedures for using cars have been seen by your friend (trading records or signed policies or well publicised on notice boards/intranet. If not then your friend should argue that it’s common practice and the employer needs to make it clearer.

@Clare99q could it be that the employer's reason for turning this into a disciplinary, is specific to your friend's trivial use for using the car - to go and see a Christmas Party venue.

I would have expected him to seek clearance from management, not only for the use of the vehicle, but also to leave his place of work for (1-2 hours?) to go and see that venue.

Sorry I mean your friend's trivial reason for using the car

@daisychain01 possibly although they’re not stating that is the reason. They’re saying it’s because he didn’t seek authorisation to take the car. They went during their lunch break and it wouldn’t of taken them longer than their lunch hour.