An employee asks to see you and tells you that they have been banned from driving after committing a criminal offence. Does a driving ban mean dismissal for them in your business? Find out how to assess the situation and come up with a legal solution…
Driving bans are imposed for a wide variety of reasons. The main ones being drink-driving and speeding offences and disqualification under the totting up rules. The latter happens when a person receives twelve or more penalty points on their driving licence within three years. The Courts will decide the length of the ban based on the seriousness of the offence. Drink driving normally attracts at least a one-year ban. A ‘totting up’ ban, for a first disqualification, will usually be six months and speeding offences can be as little as seven days.
The statutory bar is one of the ‘potentially fair reasons for dismissal’ and it arises where 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 them and you must act reasonably.
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.
It is, therefore, important to follow the process and don’t jump straight to dismissal. Find out the details first. Find out how long the ban is for, consider 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.
Dismissal should be your last resort after you’ve investigated the matter and met with the employee to discuss the various options available.
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.
People matters can be daunting and ensuring you are legally compliant is resource-intensive. We can help you find an HR solution by offering ad-hoc and strategic consultancy. If you would like to discuss how we can provide HR advice and support on the issues raised in this article please give us a call on 01473 360160. Alternatively, you can book a free one hour consultation here >>
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