Dismissal for driving HGV without a valid driving licence was fair

In the case of Wincanton plc v Atkinson and another, the Employment Appeal Tribunal (EAT) has rules that dismissal for driving HGV without a valid driving licence was fair.

Background

The Respondents were employed as HGV drivers by Wincanton plc and they were required to have an ADR licence, to enable them to carry dangerous loads, in addition to their normal HGV licence.

Both drivers had 19 years’ service with Wincanton, a haulage and logistics company that employs around 6,500 drivers. The Company checks drivers’ licences every six months and whilst carrying out such a check, they discovered that the licences for both drivers had expired.

The Company dismissed the Claimants for gross misconduct due to the “potentially serious adverse impact” of driving without valid licences, which is a criminal offence. When appealing their dismissal, the Claimants argued that dismissal was the wrong sanction given that, six years earlier, one of the Claimants had made a similar error. In that instance, the DVLA had been informed and asked to expedite the renewal application, which it agreed to do. No disciplinary action had been taken in relation to that incident. The Company rejected the Claimants’ appeal on the basis that, in three other cases, drivers had been dismissed when they lost their licences and regulations had been tightened since the incident the Claimants cited.

The Employment Tribunal Decision

The Tribunal held that the dismissals were unfair. It said that no reasonable employer would have made the decision to dismiss, noting that although the consequences of driving without a licence were “too horrific to contemplate”, there had been no “regulatory comeback”, even though the regulator had been notified. It also noted that the three previous dismissals, relied upon by the Company as creating a precedent, were in different circumstances as the employees in those dismissals had had their licences revoked by the DVLA for reasons such as medical unfitness or driving offences. The Tribunal found the dismissals to be unfair but reduced the compensatory award by 60% for contributory fault.

The Employment Appeal Tribunal Decision

The Company appealed the decision and the EAT upheld the appeal. It stated that the Tribunal had placed too much emphasis on the fact that although though the employees’ actions could have had potentially horrific consequences, nothing had actually happened. It decided that this amounted to an error of law by the Tribunal because it would mean that a negligent employee could not be fairly dismissed if the illegal act had no repercussions for the employer.

Comments

This is a good decision for employers because it clarifies that employees cannot escape dismissal when they are guilty of serious negligence in circumstances when it does not result in anything bad happening. Put simply, employers can take into account potential adverse consequences and it does not matter whether those consequences have actually materialised.

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