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Dismissal of HGV drivers without licence was fair

Posted on 26th July 2011
Case law

The dismissal of two HGV drivers who had allowed their licences to expire was fair, even though there were no "horrific" consequences.

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Employers are allowed to take into consideration the potential consequences of the employee's actions

Wincanton plc v Atkinson and another UKEAT/0040/00 July 2011

The facts

Two HGV drivers employed by Wincanton PLC were both aged over 45. This meant they each had to apply for the renewal of their HGV licence and undergo a medical every five years. Failure to do this means the licence expires automatically. Whilst Wincanton paid for the medicals the onus was on each driver to ensure they kept their licences up to date. Upon carrying out a routine six monthly check, Wincanton found that each driver had allowed their licence to expire. After a disciplinary hearing both drivers were summarily dismissed for gross misconduct because of the "potentially serious adverse impact" of driving without valid licences. This included the fact that driving without a licence was a criminal offence, the insurance was invalidated, and Wincanton's reputation and Operator's Licence were put at risk.

It was accepted that both drivers had made a mistake and had nothing to gain by their failure to renew their licences.

At the employment tribunal both dismissals were found unfair because "no reasonable management weighing the character of the misconduct against the actual risk and consequences to the company could have" dismissed. The tribunal, however, noted that "the consequences of ... driving a lorry loaded with dangerous goods as in this case but without insurance are horrific to contemplate." The tribunal took into account the fact that the employer had not suffered any "regulatory comeback" and there had been no other adverse consequences.

The tribunal, whilst finding the dismissals unfair, reduced the awards by 60% for contributory fault.

Wincanton appealed to the Employment Appeal Tribunal (EAT).

The EAT's decision

The EAT overturned the employment tribunal decision and held that both dismissals were fair. The EAT explained that:

  • The employment tribunal had made an error of law when it took into account the fact that no adverse consequences actually happened. Employers are allowed to take into consideration the potential consequences of the employee's actions. If not, it would mean that an employee who negligently acted in breach of their duties could not be fairly dismissed if the negligent act had no adverse consequences for the employer.
  • The lay members of the EAT stressed that employers should be allowed to place great importance on the potential consequences of an employee's actions, especially when dealing with a serious case such as this.
  • On the facts the decision to dismiss clearly fell inside the band of reasonable responses and was therefore fair. Wincanton had a clear policy, set out in a collective agreement, that summary dismissal without notice could be the result of an employee's failure to maintain a valid HGV licence.
  • Ultimately the employment tribunal had substituted its own decision for that of the employer's, which is something the tribunal is never allowed to do.

In practice

This decision is a relief to employers. A dismissal can be fair, even when the adverse consequences of the employee's actions do not happen. In practice employers must ensure they can point to a clear rule or policy demonstrating that a breach may lead to dismissal. This is because employees must be in no doubt about the consequences of a failure to observe the rule or policy.

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