An employee asks to see you and tells you that they have been banned from driving after committing a criminal driving offence. Does a driving ban mean gross misconduct and dismissal?
Types of driving ban
Driving bans are imposed for a wide variety of reasons such as drink driving offences, speeding offences and disqualification under the totting-up rules. The latter happens when a person receives 12 points or more on their driving licence within three years.
The Magistrates Court will decide the length of the ban based on sentencing guidelines and the seriousness of the offence. A drink driving ban normally attracts at least a one-year period. A ‘totting-up’ ban, for a first disqualification, will usually be six months and a driving ban for speeding offences could be as little as seven days.
DVLA Driving Ban Check
The employee should not be attempting to drive when banned, especially on behalf of the employer since they too could also be held responsible for any indirect or consequential loss in the event of an accident.
The current status of a driving licence can be checked online with DVLA. If the ban is greater than 56 days, the driver will need to reapply for their licence and may need to pass a driving test. Bans of less than 56 days will not require the driver to renew their driving licence.
Fair reasons for dismissal
The statutory restriction bar is one of the ‘potentially fair reasons for dismissal’ and it arises when an employee can’t continue to work in their current role without breaking the law. This would be considered the case where someone is employed as a driver or driving constitutes an essential or substantial part of their job. However, it doesn’t give you an automatic right to dismiss an employee and you must act reasonably.
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Dismissal as a last resort
Dismissal should be your last resort after you’ve investigated the matter and met with the employee to discuss the various options available. Find out the details first such as how long the ban is for, whether driving is essential to their role, if they could satisfactorily carry out their duties without a driving licence, e.g., by using public transport, or if their driving duties could temporarily be allocated to another employee. This may be more easily accommodated where the driving ban is short. Alternatively, the employee could take annual or unpaid leave.
Where driving is integral to the employee’s job and/or the ban is lengthy and the driving duties can’t be reallocated, you need to consider whether you can redeploy the employee into a non-driving role.
You don’t have to create a vacancy for them but do consider the employee for any suitable vacancies which exist, even if this may involve some retraining. Discuss with your management team and evaluate different solutions and outcomes.
If there is no workable alternative, due to the length of the ban or nature of the business and role, the next stage of the process would be to commence the disciplinary procedure.
If an employee feels that they have been unfairly dismissed, they may bring a claim to tribunal for unfair dismissal. If successful in this claim, they may be given a basic award and compensatory award in line with their consequential loss.
In assessing whether a dismissal due to a driving ban is reasonable, the tribunal will consider:
- how it affects the employee’s work
- the duration of the driving ban
- if the employee could have been redeployed (with their agreement) to alternative non-driving job duties
- the employee’s length of service; and
- the consultation and disciplinary procedure you went through in reaching your decision to dismiss them.
People matters can be daunting and ensuring you are legally compliant is resource intensive. If you would like to discuss how we can provide HR advice and support on the issues raised in this article, please contact us here or give us a call on 01473 360160.
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