Unfair Dismissal - Opinions?

unforeseen

My company has a strict policy that all mobile phones must be switched off when driving company vehicles and also if driving on business in your own vehicle regardless of whether hands free is fitted.

It's a bit of a giveaway if the employer gets a ring tone rather than straight to ansaphone.

Tron103

Thanks all for the responses! Appreciate the similarity to another post (I hadn't seen this) but very different situation as far as I'm aware.

He has a history of work-related stress having been on night shifts with no support (leading to a breakdown) and had only recently returned to work. His LM had involved him in another investigation a couple of weeks earlier and accused him of something else so he was very conscious of not getting in trouble - hence his panicked response to answering the phone. His work phone was turned off so when he received a call on his personal phone he assumed an emergency. His LM never calls his personal phone.

I can only find case law outcomes for people who have answered there phone by handling the phone (vs. hands-free) and the outcome has been mixed with some cases being viewed as unfair due to mitigating circumstances and others being deemed as fair due to previous warnings for example. Interesting to get objective views however so thanks to you all!

phillw

unforeseen wrote: »

My company has a strict policy that all mobile phones must be switched off when driving company vehicles and also if driving on business in your own vehicle regardless of whether hands free is fitted.

They can say that you can't use it, but forcing you to turn it off sounds extreme. Sounds like it might even be an unfair contract term.

I don't know why someone would sync their phone via bluetooth to a company car if their contract said they weren't allowed to use it though. Depending on what has already been said, you might be able to argue that they'd done it for using the satnav and answered the call by mistake. Depends on if there was already a functioning satnav in the vehicle.

Comms69

Tron103 wrote: »

Thanks all for the responses! Appreciate the similarity to another post (I hadn't seen this) but very different situation as far as I'm aware.

He has a history of work-related stress having been on night shifts with no support (leading to a breakdown) and had only recently returned to work. His LM had involved him in another investigation a couple of weeks earlier and accused him of something else so he was very conscious of not getting in trouble - hence his panicked response to answering the phone. His work phone was turned off so when he received a call on his personal phone he assumed an emergency. His LM never calls his personal phone.

I can only find case law outcomes for people who have answered there phone by handling the phone (vs. hands-free) and the outcome has been mixed with some cases being viewed as unfair due to mitigating circumstances and others being deemed as fair due to previous warnings for example. Interesting to get objective views however so thanks to you all!

Yes that is true. But there aren't any mitigating circumstances here.


Whilst I don't know what you've read I suspect the mitigating circumstances were enough to be discrimination either direct or indirect.

phillw

Comms69 wrote: »

But there aren't any mitigating circumstances here.

If there is an actual mental health diagnosis, then depending on what it is then you could probably talk it down from being instant dismisal (which actually sounds unfair anyway)

Another route would be if you know that other people have done it, but not been dismissed.

Davy_Jones_II

phillw wrote: »

They can say that you can't use it, but forcing you to turn it off sounds extreme. Sounds like it might even be an unfair contract term.

How so?

Having a phone visible on your desk is misconduct in my phone, and there’s nothing unfair about it, it’s done for sensible legal reasons.

Les79

Tron103 wrote: »

Thanks all for the responses! Appreciate the similarity to another post (I hadn't seen this) but very different situation as far as I'm aware.

He has a history of work-related stress having been on night shifts with no support (leading to a breakdown) and had only recently returned to work. His LM had involved him in another investigation a couple of weeks earlier and accused him of something else so he was very conscious of not getting in trouble - hence his panicked response to answering the phone. His work phone was turned off so when he received a call on his personal phone he assumed an emergency. His LM never calls his personal phone.

I can only find case law outcomes for people who have answered there phone by handling the phone (vs. hands-free) and the outcome has been mixed with some cases being viewed as unfair due to mitigating circumstances and others being deemed as fair due to previous warnings for example. Interesting to get objective views however so thanks to you all!

Would be interesting to know what the outcome of the other investigation was and whether this had some weight on the outcome here...

From the wording you've provided, it doesn't sound like is strictly a clear-cut gross misconduct case ("up to and including dismissal" in their alleged "zero-tolerance" policy). More so given your friend likely didn't break the law and, unless I'm mistaken, it sounds like your friend had turned off their work phone which is probably very much in line with their policy on work phone use. I can appreciate why your friend might have suspected some sort of emergency here if the call was made to their personal phone.

I would probably speak to the Union (if a member), or ACAS, to see if they have any thoughts. I would particularly look into whether they've followed a fair process in dismissing your friend here, including whether any appeals process was available (and appeal if they haven't done so already). See here.

Out of curiousity, what were the mitigating circumstances in the cases you found? Technically, I would imagine that only genuine 999/112 (what is 112?) emergency calls would qualify given that it is pretty much the only time you can use a handset whilst driving.

steampowered

Correct me if I'm wrong, but I believe using the phone on a hands-free system is completely legal ?

Unless the written company policy makes it absolutely clear that hands-free is prohibited, then your friend didn't breach policy, and this is a clear case of unfair dismissal.

If company policy does prohibit hands-free, then based on what you have described, it sounds extremely unlikely that this would meet the test for "gross" misconduct. Particularly if there were no previous warnings.

It does sound like your friend has quite a strong unfair dismissal claim to me.

I think your friend should get on to ACAS to start the early conciliation procedure. He needs to be mindful that there are strict time limits associated with unfair dismissal claims so he needs to sort it out promptly.

Les79

steampowered wrote: »

Correct me if I'm wrong, but I believe using the phone on a hands-free system is completely legal ?

Unless the written company policy makes it absolutely clear that hands-free is prohibited, then your friend didn't breach policy, and this is a clear case of unfair dismissal.

If company policy does prohibit hands-free, then based on what you have described, it sounds extremely unlikely that this would meet the test for "gross" misconduct. Particularly if there were no previous warnings.

It does sound like your friend has quite a strong unfair dismissal claim to me.

I think your friend should get on to ACAS to start the early conciliation procedure. He needs to be mindful that there are strict time limits associated with unfair dismissal claims so he needs to sort it out promptly.

A few nuances in the case (there was a prior investigation, for example, and the outcome of that might be interesting to know and whether an appeal was lodged) but, apart from that, I share your optimism...

Certainly one to run past ACAS, maybe even going to Conciliation. A few too many questions to ask of the employer here IMO.

Blatchford

steampowered wrote: »

Unless the written company policy makes it absolutely clear that hands-free is prohibited, then your friend didn't breach policy, and this is a clear case of unfair dismissal.
.

It seems an overreaction to me, but according to the poster the policy does say that using a phone whilst driving will result in disciplinary action up to and including dismissal. That would appear to be pretty clear. And there is inconsistency in the argument - he knew that the policy existed and therefore had his work phone switched off and in a bag; he also had his personal phone switched off but it was blue-toothed to the car and being used for directions (therefore not switched off). My phones are also blue-toothed to the car. They do not switch back on when people call.

I suspect that if the policy says no use of phones whilst driving, it is an angels dancing on the head of a pin argument to try to argue that "ah, it was handsfree". No phones means no phones.

It does sound like the manager was looking for a cause. But equally, it also looks like they found one.