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Your licence please sir

Oct 19, 2011
Unfair dismissal: what to do when employees are caught driving without a valid HGV licence, by Backhouse Jones Solicitors

HGV operators should regularly check their employees’ driving licences to ensure that any work undertaken on behalf of the business is safe and legal.

Employers can face dilemmas about whether or not to dismiss an employee when there is an issue with a driving licence. For example, having a driving licence can be a fundamental part of an employee’s employment if they are employed as a driver.  The provisions of a driver’s contract of employment should specify that failure to hold a valid driving licence could give rise to that employee’s dismissal. However, the circumstances surrounding the loss of licence may not always be black and white.

For example, the employee may have been forced to surrender their licence due to ill health in which case the employer will be obliged to consider whether or not there is alternative work available which is suitable for that employee to undertake. If, however, an employee has been found guilty of drink-driving, an employer should be able to dismiss the employee with immediate effect due to gross misconduct (subject of course to the terms and conditions of employment).

The issue of driving an HGV without a licence was recently considered by the Employment Appeals Tribunal in the case of Wincanton PLC v Atkinson & Another.

The two Respondent employees were employed by the haulage company, Wincanton PLC, as drivers. A condition of their employment was that they had, in addition to their normal HGV licences, an ADR licence to enable them to carry dangerous loads.

As the employees were aged over 45 years, they were legally required to renew their HGV licences every five years, which involved passing a medical test.

The employees had mistakenly allowed their HGV licences to expire. When the company became aware of this oversight, the employees had been driving without a licence for one and five months respectively. At the subsequent disciplinary hearings, both employees accepted that they had been guilty of misconduct. They were then both dismissed on the basis of the potentially serious adverse effects to the company from the employees’ driving without a licence.

The potentially adverse consequences cited included: the employer’s insurance cover could be jeopardised; the Regulator (VOSA) could have taken action over the breach and jeopardised their Operator’s Licence; and the standing of the company in the increasingly competitive national market could have been damaged.

The employees Appealed against the decision to dismiss them and argued that they should not be dismissed because a colleague whose licence had lapsed six years earlier was not even disciplined let alone dismissed. 

The employer rejected the appeals and relied upon three previous cases in which the employees (who had failed to renew their licences) were dismissed. The employees then brought claims for unfair and wrongful dismissal.   The Employment Tribunal (ET) found in favour of the employees, explaining that none of the potential problems had actually arisen for the employer – the Regulator had taken no action against them; none of the clients were inconvenienced; and the company’s reputation was not put in jeopardy. The tribunal also placed some weight to the case of the other employee who was not dismissed six years earlier when making its decision.  However, the tribunal also held that the employees’ conduct had contributed to their dismissal and thereby reduced the unfair dismissal awards by 60%.  

The company then Appealed to the Employment Appeals Tribunal (EAT) and argued, amongst other things, that their decision to dismiss the employees was one which fell within the range of reasonable responses. This was taking into account the potentially “horrific” consequences of the employees’ mistake of driving a lorry loaded with dangerous goods without a licence or insurance.

The EAT allowed the Appeal and held that the ET had failed to properly consider the fundamental question which was whether or not the decision of the employer to dismiss the employees fell within the range of reasonable responses.

The EAT also found that the ET had erred (1) in placing too much emphasis on the fact that there had been no adverse consequences from the employees’ mistake; and (2) in attaching too much weight to the case of the other employee and incorrectly regarded the Appellant’s treatment of him as imposing the accepted tariff.

Furthermore, the EAT found that the ET should have considered whether or not, in the light of the company’s disciplinary procedure and the potential consequences to the Appellant, the employees dismissal was wrongful.

The EAT‟s decision reinforces the need for ETs to objectively assess each case on its own merits, particularly whether a decision to dismiss an employee is reasonable. When judging a decision to dismiss, the ET must not substitute its own decision on what was the right course of action to take. Instead, the ET must ask itself whether the decision to dismiss fell within the range of reasonable responses open to a reasonable employer.

For further information please contact Backhouse Jones Solicitors on 01254 828300, by e-mail at info@backhouses.co.uk or visit www.backhousejones.co.uk.

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