UNFAIR DISMISSAL - 18.11.2011

Expired driving licences and unfair dismissal

Driving dangerously

Stephen Atkinson (A) and Nicholas Marrison (M) were employed by Wincanton plc (W) as heavy goods vehicle (HGV) drivers. Both of them knew that they were legally required to renew their HGV licences every five years. In 2009, following a routine six-monthly check, it was discovered that A had been driving without a valid HGV licence during the previous month and M had been doing so for five months.

You’re both out of here

As this: (1) had the potential to seriously impact on W’s business; (2) was a criminal offence; and (3) would haveinvalidated their employer’s insurance in the event of an accident (although one had never occurred), W dismissed them. It also pointed to the fact that A and M’s actions were “intentional”, i.e. neither had any mitigating factors to explain what had happened.

That’s unfair!

Both men claimed for unfair dismissal. At the first hearing, their claims were upheld. This was because, in the tribunal’s view, W had reached its decision to dismiss on “entirely hypothetical consequences”. In other words, it looked at what might have occurred as a result of A and M not having valid licences, e.g. an uninsured accident, as opposed to what actually did happen, i.e. two individuals who drove lorries with invalid HGV licences.

Unreasonable? Although this in itself was a criminal offence, it felt that W’s decision fell outside the “band of reasonable responses”.

It’s more appealing

However, when W appealed, that employee-friendly ruling was later overturned. In giving its judgment, the Employment Appeal Tribunal stated that, whilst the “horrific consequences” of driving an uninsured HGV were acknowledged, the tribunal had placed “far too much emphasis” on the fact that no accidents had occurred. This was an error in law.

You can consider this

It went on to say that W was fully entitled to take the potentially serious consequences of A and M’s actions into account - even if no harm was caused by them - and its dismissal decision fell “well within” the band of reasonable responses. That’s because it could have been criminally liable had its insurance been invalid and its Operator’s Licence, reputation and business placed at risk.

Tip 1. This case confirms that youmay take account of any serious adverse consequences that might arise from an employee’s actions and are not prevented from dismissing them if they don’t materialise. There’s also no get out of jail free card for employees, i.e. they can’t cry unfair dismissal if no harmful consequences arose.

Tip 2. Although this case involved HGV drivers, arguably it could apply to anyone who drives on work-related business and/or under a company insurance policy. So bring in routine licence checks and take further action if necessary.

For a free sample letter requesting a copy of an employee’s original driving licence, visit http://personnel.indicator.co.uk(PS 13.21.05).