Tribunal judge Jane Callan’s decision in favour of Veolia was published on 11 August, after a hearing on 16 and 17 May.
The unnamed claimant was an HGV driver in Veolia’s hazardous waste logistics division who worked with the company from 1998 until he was dismissed in October 2020.
Veolia had identified “consistent discrepancies” of around 50 minutes per day in the claimant’s declared start and finish times.
According to the decision document, the claimant said there had been a “witch-hunt” because he queried how time off in lieu was calculated. He claimed that, among other things, the time taken travelling to his vehicle accounted for the discrepancies as he was an “out-based driver”.
However, the appeal was dismissed by the judge, who said: “The claimant’s attack on the fairness of the dismissal fell short of showing the respondent acted outside the band of reasonable responses at any stage of the process.
“The claimant maintained that there was a witch-hunt… I reject that contention as it is not made out on the evidence.”
The driver was contracted to work 48 hours each week. The deal contained an agreement which meant that drivers who worked more than this over a 26-week period would be provided with the same amount of time off in lieu. This agreement was called ‘the wheels agreement’.
The respondent entered into consultation with trade union representatives between October 2019 and January 2021 with the aim of changing the working practice of how time off in lieu was allocated, which he said was the reason he was fired.
However, the decision document said: “The claimant was self-declaring his arrival time as 5.30am but frequently his ignition was turned on and his tachograph card inserted after 6am. The claimant was also manually entering defect checks on his vehicle as taking place shortly after 5.30am.”
After a “desktop investigation” demonstrated the discrepancies, Flavio Federici, Veolia’s fleet systems and support manager, was appointed to oversee a further investigation into the driver’s conduct.
He was provided with CCTV footage for the week commencing 28 September 2020, “which showed the claimant arriving shortly before his vehicle’s ignition was turned on and not at 5.30am as manually entered by him on his timesheet.”
“Similarly, at the end of the working day, the claimant was declaring checks having taken place at times which were later than the actual time and on some occasions around 20 minutes after he had left the site,” the document said. This led to the claimant’s suspension.
At an investigation meeting on 10 October, the driver was asked what he was doing prior to the ignition being turned on to account for the times he had declared, the decision document said. He said there were “various things which could occur”.
This includes being unable to get into the vehicle park with the gates still locked due to someone oversleeping. He also claimed that vehicles were sometimes “blocked in” the park.
The claimant disputed that he would gain anything from recording his working time inaccurately as he was a salaried worker, saying that all he was doing was “rounding numbers” and that he would round down as well as up.
Veolia had suggested this could affect the time off in lieu arrangement.
At a disciplinary hearing attended by a trade union representative, the claimant said he did not receive any training on how to fill in the forms and believed the action taken against him represented a “witch-hunt” as he was employed on the wheels agreement.
The claimant’s representative said that there had been 18 previous incidents involving drivers’ timekeeping, but these had resulted in warnings whereas the claimant was subject to a disciplinary hearing alleging gross misconduct.
A sanction short of dismissal was not appropriate
However, on 16 November, Veolia wrote to the driver to notify him of his dismissal.
Veolia had “acknowledged… the claimant did not have a direct financial gain, but nevertheless by overstating his hours he had the potential to receive additional payback of time which had not been worked and such a benefit would constitute a fraud.”
An appeal hearing took place on 3 December 2020. At the hearing, the claimant raised his long service and clean disciplinary record.
The appeal found that Veolia did take those matters into account, but “the matters were so serious, and the claimant’s responses to them unsatisfactory, so that a sanction short of dismissal was not appropriate.”
The driver took the matter to the tribunal, where his appeal was dismissed.