An employer’s guide

The DVLA and the Senior Traffic Commissioner have recently announced a crackdown on the use of mobile phones by HGV drivers while driving. One of the penalties for using a mobile phone while driving is disqualification. Caroline Prosser considers the options available to an employer left with a driver who cannot drive.

The law

Using a mobile phone while driving creates significant risk to the safety of other road users and constitutes a criminal offence under The Road Vehicles (Construction and Use) (Amendment) (No.4) Regulations 2003. The penalties for committing an offence range from a £100 fine and three penalty points to disqualification and a much higher fine of £2500. Employers can also be prosecuted if they ask or permit their employees to make or receive telephone calls while driving.

The DVLA has recently turned its attention to HGV drivers who use mobile phones while driving. The Senior Traffic Commissioner has published guidance stating that the starting point for the offence of using a mobile phone while driving committed by an HGV driver is immediate suspension of the driver’s vocational driving entitlement for 21 days. The suspension period is multiplied by the number of offences committed, so for example, if it is the third offence, the driver will be suspended for 63 days.

A driver who cannot drive

A driver without a driving licence can create huge problems for employers, especially companies primarily concerned with transporting goods and services. So what options does an employer have when faced with a situation where an employee loses their driving licence?

First and foremost, the employer cannot allow the driver to continue driving a company vehicle. The issue then facing the employer is what can they do with an employee who cannot carry out their role: can they dismiss them and if so, how?

The starting point is that an employer can dismiss an employee if continuing to employ them would break the law - for example, a haulage company could not permit a driver to continue driving if they have lost their driving licence. However this does not equate to an obligation to dismiss nor does it give an employer carte blanche to dismiss without giving the matter proper consideration. This is because although the employer can dismiss the employee, it must ensure that the dismissal is fair.

A dismissal is fair if the reason for dismissal falls within one of the five potentially fair reasons for dismissal:

  1. capability or qualifications;
  2. conduct;
  3. redundancy;
  4. breach of a statutory duty or restriction; or
  5. ‘some other substantial reason’ (SOSR); and

the employer must have acted reasonably in dismissing for that reason.

Potentially fair reasons for dismissal: conduct and breach of statutory duty/restriction

Of the five potentially fair reasons for a dismissal, two are particularly important in the scenario where a driver loses their driving licence: conduct, and breach of a statutory restriction.

A dismissal could be potentially fair if the employee ‘could not continue to work in the position which he held’ (for example a HGV driver) without either the employer or the employee contravening ‘a duty or restriction imposed by or under an enactment’. Obviously a HGV driver without a licence would breach a statutory duty, since it is a criminal offence to drive without a licence.

Acting reasonably in dismissing for that reason

In order to satisfy the test of acting reasonably, it is essential that the employer carries out a reasonable investigation and avoids knee-jerk reactions. For those employees with more than two years’ service, a fair procedure must be followed otherwise the dismissal will be considered unfair.

A reasonable investigation will include establishing the facts regarding the incident itself and considering whether there are any mitigating circumstances. Although it is not legally necessary, an investigation meeting with the employee is very useful for establishing whether the employee should be dismissed and whether it is reasonable and fair to do so.

It is equally important to ensure that the employer does not adopt an approach which leads to an inevitable, and therefore unfair, decision. Further, it may also be relevant to consider the duration of the driving ban; the personal circumstances of the individual; whether it is a first or a repeat offence and whether the employee had been put under pressure to use the phone by the employer.

In order for it to be a fair dismissal, an employer would be expected to try to find other suitable work for the employee before choosing to dismiss them, for example an administrative role in the office. Since the employer is not obliged to create a role for the employee, if no positions are available where driving is not a pre-requisite, it is likely that the decision to dismiss would be fair and reasonable in the circumstances.

The situation may be slightly different where the driver is awaiting a formal decision from the DVLA. In this scenario, the employer needs to weigh up whether to dismiss the employee immediately, before the final decision is made, or to postpone their decision until the employee is formally banned from driving, albeit then having to impose a long suspension on full pay. The good news for the employer is that they do not have to wait for the outcome of the DVLA decision before dismissing the driver. However the same fairness requirement still applies so the employer must ensure that the dismissal is fair and a proper investigation has taken place. As long as the dismissal is fair, the employer will not be liable for unfair dismissal even if the employee is later absolved of the offence.

Moving forward, employers may want to ensure that there are provisions within the contract of employment or employee handbooks which expressly prohibit use of mobile phones. In addition, or in the alternative, the employer may wish to publish a mobile phone policy to ensure that their employees are fully aware that driving whilst using a mobile phone is a criminal offence and that a disciplinary procedure will follow in the event that an employee is found guilty. The employer may also want to consider the range of disciplinary actions available and whether they are appropriate in all circumstances.

In a nutshell

An employer can dismiss a driver who has been banned from driving, however the decision to dismiss must be fair and reasonable and must have followed a fair procedure; this is true even where an employee has lost qualifications that are essential for the performance of their duties.

Employers must remember that they cannot just dismiss an employee immediately and without proper consideration, even where the potential breach is a criminal offence such as driving whilst using a mobile phone.