Last reviewed 3 October 2013
Vikki Woodfine of DWF LLP looks at the issue of driver discipline in situations where the driver has committed driving offences outside work.
When a business employs professional drivers, it has clear control over them in respect of the requirements of their role, and various rules and policies that the drivers have to abide by.
For example, where a driver is found to have falsified his or her tachograph records, or used his or her company fuel card to fill up his or her personal vehicle, or perhaps failed to secure that vehicle, companies will most likely have a policy that classes this as gross misconduct allowing for dismissal without notice.
However, the procedure is less clear-cut when a driver’s conduct outside of work affects his or her role within his or her employment. What happens, say, if a driver is charged with a serious traffic offence in the driver’s own vehicle, causing his or her employer concern over the standard of driving? What is the position if a driver loses his or her licence? Or what can action can a manager take if a driver is charged or convicted of a violent or sexual offence?
In order to legitimately dismiss an employee, the employer must ensure that there is a fair reason for that dismissal. Legislation dictates that a dismissal will be fair provided that the reason relates to capability, conduct, redundancy, or is for “some other substantial reason”.
This article looks at how businesses can fairly dismiss drivers on account of their conduct outside work.
Driving offences outside work: pre-conviction
Once a person has been charged with a (personal) driving offence, a court will determine whether he or she should be allowed out on bail, pending a hearing, or whether he or she should be remanded in custody. In the majority of driving offence cases, the driver will be let out on bail, meaning that the driver is available to work. However, many businesses might not be comfortable allowing an employee charged with a driving offence outside of work to attend work, to drive. One of the first reactions of businesses (understandably in some cases) is asking whether the employer can dismiss the employee.
The difficulty for businesses in this sort of situation is getting hold of evidence to base a dismissal on, and therefore businesses might have to wait to see whether a conviction is achieved, either through a guilty plea or a conviction following a hearing, before taking any further action. However, in the most clear-cut and serious cases, such as causing death by dangerous driving outside of work, an employer may dismiss the driver pre-conviction for gross misconduct or rely upon some other substantial reason regarding its serious concerns over the driver’s suitability to perform his or her role.
Alternatives to dismissal pending conviction
In all but the most clear-cut cases, the employer would be best to consider redeploying the driver off the road, pending the criminal proceedings. Company image is very important and the employer will not want a driver who has been charged with a serious driving offence to drive for the company. If it is possible to temporarily put them in an office or warehouse-based position, then this would be favourable, pending the outcome of the criminal proceedings.
Alternatively, the employer could consider suspension of that driver, pending the outcome of his or her criminal proceedings. However, suspension may be less attractive as the company would still be paying the employee without him or her carrying out any work in return.
Where a driver is remanded in custody for a period of time, pending a hearing, then the company may explore other ways in which to terminate that driver’s employment, such as frustration.
Frustration is a legal principle in which a contract is treated as discharged, without the fault of either party, because an event has occurred that renders further performance impossible and/or radically different from that contemplated at the time of the contract. Here, the driver’s imprisonment would make it impossible for the contract to be performed.
Frustration is a complex area of law, which is fraught with uncertainty. If a company is faced with such a situation, they are urged to seek separate legal advice.
Acquittal of charges
If the driver is subsequently acquitted (after being on bail or spending a short time in custody), then the company could consider some rehabilitative driving training or standards tests if the driver has not been on the road for some time. If the driver is convicted, however, then it would be easier to dismiss at that point – please see below.
Driving offences outside work: post-conviction and loss of licence
Where a driver has been banned from driving for a period of time, the employer should first take a look at the driver’s employment contract. In many cases, it is likely to be a term of that contract that the driver continues to hold a valid UK driving licence. Where this is lost, the driver would be in breach of contract, entitling the employer to consider the contract to be at an end and dismiss the employee.
Additionally, where the company has concerns over the driver’s suitability following a conviction, and the driver’s ability to carry out his or her duties safely and properly owing to the conviction, then it could rely upon this in dismissing the driver. It could be argued that the company has lost trust and confidence in the driver, given that it expects its drivers to maintain good standards of driving and safety. This is clearly undermined in situations where a driver is convicted of a driving offence, even if not obtained in the course of carrying out their duties at work.
Where there has been damage to the company’s reputation following press coverage of such a situation, then this could be grounds for dismissal for gross misconduct.
Convictions for violent/sexual offences outside the workplace
Dismissing an employee for sexual/violent conduct outside work has challenges. Businesses would need to evidence a strong link between the offence and the alleged perpetrator’s unsuitability for his or her role as a driver. This link could be easier to establish in some cases, for example, a school bus driver convicted of possessing child abuse images on his or her home computer. However, links will not be so easy in cases where a delivery driver is accused of punching someone in a bar.
Where the company can link the criminal allegations with that person’s suitability for the role, then a fair dismissal is more likely to be established.
Even where there is no direct link between the sexual/violent offence and suitability for the role, companies may find themselves in situations where other employees refuse to work with a particular person on the basis of a charge/conviction. It may also be that the company cannot ensure the safety of a convicted driver. These reasons could also amount to fair reasons for dismissal as the employment relationship is no longer tenable. However, before a dismissal is considered, attempts should be made to redeploy the employee.
In cases where an employee being charged or convicted of sexual or violent offences brings the company into disrepute, then dismissal might be an option. This will be most acutely relevant in situations where the offence links with the suitability with the role, and also how it impacts upon the brand of the company. Bringing the employer into disrepute is likely to be considered gross misconduct under the disciplinary policy and adds another aspect to the employer’s reasons for dismissal. Again, this will be easier to establish post-conviction.
Also, if an employee fails a DBS check, then the employer may have grounds to investigate and ultimately dismiss.
Dismissals, post-conviction, will be more straightforward for businesses, even where that conviction is obtained outside work. For pre-conviction dismissals, it is going to be more difficult for employers to objectively establish a fair reason, but the employer only has to show that it believed the employee was guilty on the “balance of probabilities”, which is a lesser standard than in the criminal context.