Q: One of my employees, who is based on the road, has been banned from driving. He clocked up three points while on company business, the rest as a result of driving in his own time. What are my options? Do I offer him an alternative position in-house, providing there is an opportunity? If not do I still have to keep him on despite his negligence?
A: The loss of a driving licence while being employed in a job that requires you to have one can be a fair reason for dismissal under statutory illegality as the driving aspects of the job can no longer be carried out legally. Therefore, dismissal for this where driving is a fundamental aspect of the job role can be found to be fair by a tribunal, and in some employments, for example a taxi driver, inescapable.
If the role that your employee undertakes is not solely based on driving then the licence loss may not automatically warrant a dismissal. First, by using the employee’s contract of employment as a starting base, it needs to be determined whether driving is an integral part of the job role. If the employee can still carry out his job without driving, then the answer will be no, in which case before a dismissal is decided upon, possible adjustments to the job role or a suitable alternative position which will not involve driving should be considered.
As the employee is based on the road it should be explored whether there is a possibility of a job swap with an office-based co-worker or an alternative position in-house that they can fill. Taking the duration of the ban into account can be useful here as a temporary position may be available that the employee is suitable for or, if there is a job-swap, the ban length can be relied on to make clear to both employees that this swap is temporary and will revert once the ban ends. Alternatively, it can be explored whether alternative methods of transport are available to allow the other aspects of the role to be carried out.
If there are no suitable alternatives available, and the original job simply cannot be carried out without a licence, then a dismissal with contractual notice is likely to be found to be a reasonable response to the driving ban. The dismissal should still follow all normal disciplinary procedures and processes, such as a disciplinary hearing, and allowing the employee to be accompanied and given the right to appeal the dismissal, so as to remove the possibility of an unfair dismissal claim being brought by the employee.
Peter Done is managing director of law firm Peninsula
