We are in the motor trade and one of our sales people has just lost his driving licence due to drink driving, for 2 years. He is 59 years old and there is nowhere else to redeploy him to within the organisation. He cannot do the job without taking customers for test drives, so we have told him that it is likely that he will be dismissed due to a lack of capability.
Peter replies:
One of the potentially fair reasons for a dismissal arises in circumstances where an employee could not continue to work in the position held, without contravention of a statutory enactment i.e. it would be illegal for them to do this part of their job.
The main example of this type of dismissal is where an employee has been banned from driving. If the dismissal is for contravention of a statutory enactment, or for ‘some other substantial reason’ – SOSR, the employer will need to demonstrate that consideration has been given to any adjustments to the role, or other suitable vacant positions, prior to taking the decision to dismiss. For example, it is necessary for an employer to consider how essential driving is to the work carried out by that employee. It is also necessary for an employer to follow a fair process before deciding to dismiss that employee. For example, the employer should:
- consult with the employee
- consider any alternative to dismissal, such as any opportunities to re-deploy the employee
- consider the length of the ban, a couple of months is very different from a ban of well over a year in duration
- take into account the size and administrative resources of an employer
- assess the impact the ban has on the employee’s ability to perform their role
- consider any adjustments which can be made to the role, for example, would the employee’s colleagues be able to step in?
- has the court case been covered in the media with a direct link to the employer that has led to bringing the organisation into disrepute
It may also be possible in such cases to dismiss for SOSR provided a fair process has been carried out.
An example from case law is Appleyard v FM Smith (Hull), EAT. In this case a maintenance fitter lost his driving licence. It was a requirement of the job that he held a current driving licence. Mr Appleyard was required to carry tools and spare parts in his vehicle and therefore it was impractical for him to use public transport. The employer looked at:
- the possibility of re-organising the work so that he was based at the depot
- the possibility that he could get lifts from other employees
- the size of the team
- the length of the ban – he lost his driving licence for 12 months
As it was a small team, none of the suggestions was practicable. Mr Appleyard was dismissed and this was held to be a fair dismissal in the circumstances.
Capability in legal terms is about ill health or incompetence, not legal requirements. The key to success with such situations is to be careful and considered, rather than having a knee-jerk reaction, and not thinking about the correct legal categorisation.
Many organisations have a rule that losing a driving licence is a conduct issue, which is probably true in the circumstances of a drink-drive ban, but it is probably safer to dismiss for SOSR, or rely on statutory illegality as the reason for dismissal. In any event warn the employee of the potential consequence of dismissal in the event that no other suitable options are found.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
