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Jill Headford

Posted 14 April 2016
by Jill Headford

How to deal with drivers caught using mobile phones



 

Under The Road Vehicles Regulations 2003, using a mobile phone at the wheel has negative consequences for both drivers and employers. Recent guidance from the Senior Traffic Commissioner suggests that the starting point for any punishment against drivers should be an immediate 21 day ban. The real question for employers is what can you do if one of your drivers gets disqualified?

Obviously it is essential that the employee is not permitted to carry on driving, however the real issue tends to be whether or not the employee can be dismissed. It is important to note that a driving ban does not give an employer free reign to fire at will and that any dismissal must be justified by one of five “potentially fair reasons”:

  • Capability or qualifications
  • Redundancy
  • Breach of a statutory duty or restrictions
  • Conduct
  • Some other substantial reason

The two important reasons in this circumstance are conduct and breach of statutory duty, for example driving without a licence is a criminal offence and therefore in breach of statute. As well as a dismissal having to fall within one of the five reasons, it must have been reasonable for the employer to do so.

To evidence reasonableness it is important to carry out sufficient investigations and consider the facts of the incident. Factors such as whether this is the first offence can be taken into account. A meeting with the employee can be of use to show that the dismissal has been carefully considered. This is especially important for employees with more than two years service, as a lack of fair procedure could warrant their dismissal unfair, leaving the employer open to potential claims.

Even if the driver is awaiting a formal decision it is still possible to dismiss. Ultimately, the key to showing a fair decision is to show that it was not the only and inevitable decision and that it was reached through a fair process.

It is advisable to ensure that there are terms in the contract of employment which prohibit the use of mobile phones and to have a clear and visible policy to ensure that drivers are aware of the consequences. Driving whilst using a mobile phone is a criminal offence, and although this does not legally justify immediate dismissal, making sure drivers know the law will help to evidence a reasonable and fair reason to dismiss them.

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About the author

Jill Headford

Jill Headford

Partner

A partner in the firm since 1994 and an experienced Court and Tribunal advocate, Jill specialises in resolving disputes and is a member of the Property Litigation Association