The early months of the year are never easy as the revelry of the festive period wears off, but employers can find that they face particularly difficult issues arising directly from the excesses that we all see at Christmas time.
The scenario is not at all unusual. In the first few weeks after the new-year an employee tells you that he has been pulled over for, or perhaps even been convicted of, drink-driving. If driving is a fundamental part of the job there will be considerable inconvenience and disruption. What are your options? Can you dismiss? Should you dismiss? As is often the case, the answer is “It depends…”
We all know that it is only employees with 2 years’ service who have the right not to be unfairly dismissed. On the face of it, those who have less than 2 years are in a truly vulnerable position, but even in those cases employers may want to think carefully before taking drastic action. For example, the employee may be well-regarded or of vital importance to the employer.
Whatever the background factors, the employer should always follow a process of some kind. This need not be lengthy for those with insufficient service but it should involve a discussion to establish the facts and allow the employee the opportunity to make representations before a decision is made. It is possible that there may be some underlying medical condition that in some way has a bearing on the decision-making. This may not ultimately affect the outcome, but it may do. For this reason, the employer should always establish the key relevant facts before making a decision. In some cases the employer may need to make further enquiries.
Those who have the right not to be unfairly dismissed should certainly be given the benefit of a fair process and proper consideration of the issues, including a right of appeal.
If the employer is contemplating dismissal it will need to consider the reason that it will rely upon. This will, in large part, depend on whether the loss of the licence is sufficiently connected to the employment. If in the commission of the offence the employee was driving a vehicle provided by the employer it is likely that there will be a basis for a dismissal for misconduct. This is because the employee’s actions will have had the potential to give rise to liability on the part of the employer and/or bring about considerable financial loss and damage to reputation.
Alternatively, the employee may have been driving his own vehicle during his own time. If so it is unlikely that there will be a sufficient basis for a dismissal for misconduct. However, there may be an alternative – and fair – reason for dismissal. This is because the loss of the licence may leave the employee unable to carry out the duties of his job. The employer will be obliged to at least consider whether there is alternative work available, but if there is none it is likely that the employer will be able to fairly dismiss if the employee cannot perform the job that they were employed to do.
A diligent process will be required to establish these and other factors. Amongst other things, the employer will need to consider whether the employee has breached a specific provision in a policy. The employer should, again, make appropriate enquiries about whether there are any relevant medical issues. Although a health condition will not excuse drink-driving it may have a bearing on the outcome of the employer’s decision-making and the law generally prefers to see employers treat dependency or excessive alcohol consumption as a capability issue rather than one of conduct.
The employer should also allow the employee the chance to provide explanations and consider whether there are any mitigating factors, such as length of service and the employee’s employment record.
In conclusion, although such circumstances may present considerable inconvenience to the employer there is no reason to avoid, or be concerned about, taking action to address the issues. Jacksons’ specialist employment law team will be pleased to support you in doing so.
Please contact Mark Foster, Partner & Head of Employment, if you have any questions relating to this article or if you wish to speak to us about other employment legal issues. Emailmfoster@jacksons-law.com or telephone 01642 873727.
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