The claimants, Mr Genus and Mr Kelly, worked for the respondent, Fortem Solutions Ltd, a national property solutions provider specialising in repairs, maintenance, energy services and planned project work.

The claimants worked as property repairmen and, as such, they were provided with a company van. The pair were longstanding members of staff with no disciplinary or performance issues. 

Following an unrelated, anonymous complaint, the respondent initiated an investigation into the claimants’ use of the company van. It monitored their journeys using an internal tracking device, revealing the pair had been using the vehicle to attend to personal matters. 

Mr Genus had used the van seven times to visit his mother, a journey he claimed was on his way home. Mr Kelly had used the van to attend his son’s football match, go to the supermarket and attend the barbers.

They were dismissed for gross misconduct, namely, for breaching the company’s driver and vehicle policy, a hard copy of which was posted directly to their given addresses.

The policy expressly stated company vans were provided for the performance of working duties and that, where provided, “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.”
  
The claimants argued the policy documents were confusing as to what constituted their “ordinary commute.” The respondent maintained the claimants were well aware of the company policy in place – they received the ‘Private use of company vans – policy refresher’ document, signed the “Employee Asset” form when they collected a new vehicle, and were notified that the respondent’s disciplinary policy listed examples of gross misconduct including “unauthorised use of a company vehicle”. 

Each of the men brought a claim for unfair dismissal, placing emphasis on the fact that this was a first offence for which they received no warning, the ambiguity of the relevant policy documents, their length of service and their unblemished records. 

Applying Burchell, the tribunal had to determine whether the respondent had carried out as much investigation as was reasonable in the circumstance.

The tribunal held the claimants were unfairly dismissed. Even though the respondent had a genuine belief that the claimants had breached the policy and were therefore guilty of misconduct, it failed to undertake a reasonable investigation. The respondent failed to carry out a complete and reasonable investigation into the issue of confusion over what business and private use was and failed to investigate whether there was a widespread misunderstanding of the rules.
 
The tribunal held that, given the pair had contributed to their own dismissals, any damages should be reduced to reflect contributory fault.
https://assets.publishing.service.gov.uk/media/5b6c1e2ae5274a2997b49fe6/Mr_M_Genus_and_Mr_M_Kelly_v_Fortem_Solutions_Limited_1304270_2017.pdf