The EAT has overturned a tribunal decision that two lorry drivers were unfairly dismissed for continuing to drive after their HGV licences had expired (Wincanton plc v Atkinson and another). The tribunal had placed too much emphasis on the fact that no adverse consequences had materialised as a result of the mistake.  The EAT held that "potential" damage was sufficient to justify dismissal, and the dismissals in this case were within the band of reasonable responses.

Two drivers were dismissed by Wincanton plc for gross misconduct after a routine check revealed their HGV licences had expired.  The company argued that driving without an up-to-date licence could have had a "potentially serious adverse impact" on the business.  For example, it invalidated their insurance, could have seriously damaged their reputation, and could have resulted in the loss of valuable contracts.  The claimants challenged their dismissal on the basis that an employee who had made a similar error a few years previously had not been dismissed. The tribunal decided the dismissals were unfair. Their decision was based on the fact that, whilst the repercussions of the claimants' actions could have been serious and far-reaching, the reality was that nothing adverse actually did happen. The EAT, however, has held that, if this was correct, it would mean that no employee could ever be fairly dismissed if their negligent actions did not actually lead to a negative outcome for the employer.  The main consideration should have been whether the actions taken by the employer were within the band of reasonable responses which an employer would be entitled to adopt in such circumstances. The EAT considered that they were. The EAT also said that the fact that an employee had previously not been dismissed for similar conduct was not of great importance, as there was an existing policy, of which both claimants were aware, set out in a collective agreement, stating that a breach of statutory or company rules would lead to dismissal without notice.

Impact on employers

  • This case provides useful guidance that, even if the negligent actions of an employee do not actually lead to serious adverse consequences for the employer, the fact that they had the potential to do so may be sufficient to justify a dismissal.  It also provides a useful reminder that it will be easier to justify a dismissal if the employee has been warned, in a company policy or handbook, that the particular course of conduct may result in dismissal.