Is Dismissal Fair?

TELLIT01

You drove a company vehicle whilst disqualified, and therefore with no insurance.  That is gross misconduct in anybody's books.  Claiming ignorance of the law is no defence.  The employer has not acted unreasonably.  Whether the employer would be prepared to look at your overall employment history is a decision for them.  They may have situations which they consider to be red lines.  Did your employer know about the previous 3 speeding offences in a comparatively short timescale?

steampowered

The legal test for "gross misconduct" is really very strict. 

The facts the Op describes are likely not enough for gross misconduct., particularly if driving is not part of the Op's employment. As the employer went down the "gross misconduct" summary dismissal route, on the face of it, it sounds to me like the Tribunal would be likely to find that this was unfair dismissal if the employer was challenged.

There are countless examples of Employment Tribunals finding that employees were involved in "misconduct" for serious driving offences, but that this is not enough for "gross misconduct".

Can I ask when this happened? If you were dismissed more than 3 months ago you are too late to raise an unfair dismissal complaint. There is a strict 3 month time limit on these cases.

steampowered

TELLIT01 said:

You drove a company vehicle whilst disqualified, and therefore with no insurance.  That is gross misconduct in anybody's books.   

Not always in the Employment Tribunal's books - see for example:

HGV driver drove without a licence for over a year - found to not be "gross misconduct": The Tribunal was persuaded by the fact that there was no harm done to the employer and that other employees had been disciplined rather than dismissed for the same offence https://pjhlaw.co.uk/2011/07/20/unfair-dismissal-driving-license/

Groundsman required to drive for work - arrested for drink driving - found to not be "gross misconduct" as the employer had failed to consider whether the gardener's anxiety and depression contributed: https://www.baineswilson.co.uk/news/3157-unfairly-dismissed-for-drink-driving

Property maintenance van driver used vehicle for personal use in contravention of company policy which said personal use of company vans was gross misconduct - the Tribunal found this was unfair dismissal on procedural grounds because the employer failed to follow a fair process by failing to take into account the employee's long service and clean disciplinary record - - https://assets.publishing.service.gov.uk/media/5b800da240f0b67f62cb3d7d/Mr_M_Genus___others_v_Fortem_Solutions_Limited_1304270_2017___others.pdf

AskAsk

Brendan90210 said:

Thanks for your opinions and thoughts thus far, all greatly appreciated! 

My personal opinion is that decisions and sanctions should be consistent unrelated or not, I’m not sure where that stands in law. Otherwise there may be bias eg I get fired because decision maker doesn’t like me or I’m old, or black. Yet someone else gets a final written warning because they are pretty, young or white. I think there should be a consistent approach right? So other cases and precedents should be considered surely?

no, not really.  each case is considered on its own merit.  there can always be mitigating circumstances or discretion given, so the outcome of other cases do not need to be the same as yours.  you drove a company vehicle when it was illegal to do so.  the consequence could have been enormous for the company.  imagine if you had an accident and someone was killed or injured and the insurance was revoked.

you also lied to the company by not disclosing your conviction and did you tell them about the 3 prior convictions as well?  you seem to think speeding is not a big issue, but i am afraid it is.  it kills lives like drink driving and that is why after 3 priors, and you still haven't learnt your lesson and think you are above the law, you have been given a ban.  you can go to any independent tribunal with your complaint, but no one will judge you in a lenient light considering your behaviour.

General_Grant

Brendan90210 said:

. . . .  I have subsequently found out through a freedom of information request that other staff have been found guilty of gross misconduct for theft, conduct or fraud (some where it wasn’t a first offence) yet were given a lesser sanction eg final written warning. . . . 

I'd be interested to know how you were able to get this information. 
What sort of organisation did you work for?

cymruchris

No two cases of an investigation are ever the same. 

There will always be mitigating circumstances as to whatever decision is reached on any particular case.

If it was as easy as 'you did X you're fired' 'you did Y you get a final written warning' - what would be the point of investigations? We could just save everyone's time (and salary costs) by having a fixed system to deal with any issue that arises. (It's not - so it won't happen).

If you believe you've been discriminated against based on a protected characteristic - then you could certainly go to tribunal. 

From what's been said though, and of course we don't know all the intricate details, I'd be focussing on finding alternative employment.

TBagpuss

steampowered said:

TELLIT01 said:

You drove a company vehicle whilst disqualified, and therefore with no insurance.  That is gross misconduct in anybody's books.   

Not always in the Employment Tribunal's books - see for example:

HGV driver drove without a licence for over a year - found to not be "gross misconduct": https://pjhlaw.co.uk/2011/07/20/unfair-dismissal-driving-license/

Groundsman required to drive for work - arrested for drink driving - found to not be "gross misconduct" as the employer had failed to consider whether the gardener's anxiety and depression contributed: https://www.baineswilson.co.uk/news/3157-unfairly-dismissed-for-drink-driving

Property maintenance van driver used vehicle for personal use in contravention of company policy which said personal use of company vans was gross misconduct - the Tribunal found this was unfair dismissal on procedural grounds because the employer failed to follow a fair process by failing to take into account the employee's long service and clean disciplinary record - - https://assets.publishing.service.gov.uk/media/5b800da240f0b67f62cb3d7d/Mr_M_Genus___others_v_Fortem_Solutions_Limited_1304270_2017___others.pdf

In the HGV case you cite the initial tribunal found the dismissal was unfair but that was overturned on appeal, the EAT found that it was fair and that the tribunal was wrong and had allowed itself to be  sidetracked. The note you linked to actually states " The EAT found the dismissals fair as the key question was whether the dismissals were within the range of reasonable responses. Here clearly some (if not most) employers would have dismissed based on those facts, so the dismissals were fair as they were within the range."

Similarly, in the groundsman and van driver cases the issues were procedural - the issue wasn't that that the offence wasn't or couldn't be gross misconduct, it's that the employer either didn't consider all relevant factors (or didn't adequately record that they had done so) or didn't follow the correct process.   For instance, in the groundsman case if they had expressly recorded that they had considered the medical evidence and taken into account the employees situation and health issues, then they could almost certainly still have fairly dismissed him.

OP, how your employer has treated previous situations *may* be relevant if the previous situations were directly comparable, and where the only difference is related to a protected characteristic - so if you and a coworker who is of a different ethnicity or gender to you were both caught driving while disqualified and found to have driven company vehicles  while disqualified, and they sacked one of you but not the other, you might have an argument. But it sounds as though there were different offensives so all your examples show is that a finding of gross misconduct doesn't always result in dismissal, which is not unfair or inconsistent - gross misconduct covers a lot of ground. 
You mention that they chose not to dismiss someone for theft. While theft, like driving uninsured, is a criminal offence, it's one which is potentially less serious from the employers perspective as the chances of it resulting in serious financial or reputational issues for them are much lower.

Brendan90210

Thank you thank you for all comments so far, they are great and helping me to bring some objectivity to the situation. I am aware of someone that was found guilty of fraud and criminally convicted with a 2 year suspended sentence, but retained their job due to long service and remorse displayed. Others that claimed overtime, but were not in work. I know they are not directly related and each organisation has their own red lines, but at the time I wasn’t aware I was commuting an offence as I had a genuine belief I could drive under appeal. The speeding offences were all with work and driving on motorways, 80mph, which was stupid. That said I hold my hands up and have learnt, I keep within 70mph. My feelings are the offence did not cause reputations damage and given good service I could have been given an opportunity to repair the relationship with the employer. This opportunity was awarded to others, so it didn’t seem fair.

AskAsk

Brendan90210 said:

Thank you thank you for all comments so far, they are great and helping me to bring some objectivity to the situation. I am aware of someone that was found guilty of fraud and criminally convicted with a 2 year suspended sentence, but retained their job due to long service and remorse displayed. Others that claimed overtime, but were not in work. I know they are not directly related and each organisation has their own red lines, but at the time I wasn’t aware I was commuting an offence as I had a genuine belief I could drive under appeal. The speeding offences were all with work and driving on motorways, 80mph, which was stupid. That said I hold my hands up and have learnt, I keep within 70mph. My feelings are the offence did not cause reputations damage and given good service I could have been given an opportunity to repair the relationship with the employer. This opportunity was awarded to others, so it didn’t seem fair.

the problem with your offence is that you did something that could have had serious consequences to your employer and that frightened them.  the fact that you continue to speed to an extent where your licence was suspended tells your employer that you have no regard for the law and that you will continue to break it until you are stopped.

it is therefore not one fault but a continuous string of faults, and it makes it worse that it is the same fault that continues to be carried out even though you have been caught, penalised and cautioned.  after 3 speeding convictions you would have been fully aware of the consequence of getting a fourth conviction, and yet you still went ahead and did it anyway.  this shows your employer the sort of person you are, and so it is understandable that they have chosen to give you the boot.

TBagpuss

My point about reputational damage wasn't that you had actually caused damage to their reputation  but that by acting as you did, you risked causing it. For instance, had you been involved in an accident, then a news story that mentions you were driving a vehicle belonging to your employer, X & Co, and driving for work, makes them look bad even if they were not at fault, and they would also potentially also have financial liability and issues with the insurance company.

By contrast, if someone stole from them, then that's something which is very unlikely to come to public notice and wouldn't reflect badly if it did.

"X & Co gives employee who stole a second chance" isn't bad publicity"
"accident caused by disqualified driver while working for X & Co" is. 
And it doesn't necessarily matter much whether they were in any way at fault because people don't pay much attention to detail, and perception matters as much as, if not more than, the facts when it comes to reputation.