BACKGROUND

A friend of mine had a bad run of luck within a short space of time and had accrued 12 points on his driving licence. He was facing a 6 month driving ban which jeopardised his employment and sought advice from one of Scotland’s top lawyers who specialises in this sphere. His employer had summoned him to a gross misconduct hearing and he faced the prospect of losing his job.

LEGAL ADVICE GIVEN

“Temporarily losing your licence in circumstances outside of work could not normally be treated as misconduct by your employer. You would have to be in a situation where you were bringing the employer’s name into disrepute, which doesn’t seem to be the case here.

An employer would be free to draw up a disciplinary code saying that they could treat loss of licence as (gross) misconduct, but even then they would have to justify taking such a hard line. I would maybe still ask them to confirm unless you know already whether their code, policy or however they describe it says this expressly.

Under normal circumstances (and there have been a few cases on this subject) loss of licence in an employee’s own time is not a disciplinary matter, but can be justification for termination of employment because it effectively becomes illegal for the individual to carry on their job.

Before being able to dismiss fairly the employer has to look at alternatives, which could be one or more of the following:

1. Assigning you to other duties that don’t require driving. You mentioned warehouse/yard duties and also the engineer’s mate role. If they are genuine roles that need to be performed, then you can argue to be given that type of work until you get your licence back;

2. Using up some or all of your annual holiday entitlement (although I realise this is less attractive and will only cover a small part of the ban);

3. A period of unpaid leave – i.e. you could theoretically stay an employee but not work or be paid until the ban was lifted. This might allow you to do other work temporarily before being able to return to your old job.

From what you say you have good grounds to argue for number 1 without falling back on 2 or 3 but bear them in mind.

It follows from this that they shouldn’t be holding a disciplinary hearing (since it’s not a misconduct matter), but rather having a meeting to explore ways of accommodating you until you can drive again.

The length of the ban is relevant and 6 months I would suggest is not so long that they can be excused trying to find a temporary arrangement.

Whatever happens, I would argue against misconduct being the reason for your departure as that will affect badly your prospects of finding another job”.

OUTCOME

My friend got a 6 month driving ban and his employer offered him an alternative role on reduced pay, which he accepted.

Motorists are finding inspiration from high profile celebrity cases where celebrities such as Paddy McGuinness have hired Nick Freeman (otherwise known as ‘Mr Loophole’) for his ability to find errors in badly drafted legislation and sloppy administration errors.by the authorities trying to enforce the law.

I have successfully used similar tactics to cancel an alleged speeding offence where a sign was obscured by a hedge, and a motorist literally took a leaf out of my book to beat a speeding fine on temporary roadworks.

Have you faced a driving ban in the course of your employment? If so, what was the outcome?

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