Weekly dilemma: banned drivers

Q I am the HR manager of a distribution and delivery company. One of our lorry drivers already has 10 points on his driving licence. He was recently caught speeding (in his own car) and has now received a Court Summons. As he is likely to receive at least three points for the speeding offence, under the totting-up provisions I believe he will automatically be disqualified from driving for at least six months. If he is banned from driving, can we dismiss him? He has been employed for about three years.

A If your employee is employed as a driver and loses his driving licence, this does, of course, mean that he cannot continue to work as a driver for the duration of the ban. However, it does not necessarily follow that you can simply dismiss him because he can no longer carry out his job duties. While it is a potentially fair reason to dismiss someone in circumstances where they cannot continue to work in their position without contravening the law, you have to act reasonably in both the dismissal procedure you adopt and in treating it as a sufficient reason for dismissal.

Your starting point is to consider in detail whether you are able to find the employee alternative non-driving work on a temporary basis for the duration of the ban, for example an office-based role. This will necessitate consulting with the employee to discuss the options available, even if they involve lesser or different hours of work or a reduced salary. Set up a meeting with him to discuss the position. However, if there is no alternative work available at all, after consultation you should be able to dismiss the employee. Dismissal should always be the last resort after you have considered all other options.

Note that the statutory dismissal and disciplinary procedure does not apply to dismissals on this particular ground. That said, it is always good practice to incorporate something similar into your dismissal procedure anyway, not least because you still need to demonstrate that the procedure you adopted was fair. Having discussed alternative employment options (if any), write to the employee inviting him to attend a formal meeting at which you wish to discuss your proposal to terminate his employment because of the driving ban. Set the meeting up on reasonable notice and allow the employee to be accompanied and to make representations before reaching your final decision, which you should confirm in writing. Preferably give a right of appeal against any dismissal decision.

By Claire Birkinshaw, solicitor and legal information manager, Abbey Legal Protection

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