No longer holding the necessary qualifications to undertake a job, where possession of those qualifications is a legal requirement, is a potentially fair reason for dismissal. If this employee cannot perform his job without driving and you dismissed him for this reason, then there is a good chance that the tribunal would find that the dismissal was not unfair. In some cases dismissal in this circumstance may be inevitable.
However, although the employee would be contravening a legal requirement if he were to continue driving in his current job, this will not automatically warrant dismissal because there may be adjustments that you could make which would mean that the employee would still have an effective role in the organisation.
Because the main duty of the employee’s job is his consultancy services and not the driving, there may well be alternative arrangements that can be agreed upon for the duration of the driving ban. Consider how integral driving actually is to the job. The outcome of this will certainly be different for someone whose job was as a driver, a taxi driver for example, as opposed to someone who occasionally needs to use a car to reach an alternative work location. Each job will be different in this respect so individual consideration needs to be given to whether it is possible for the employee to make efficient use of alternative transport instead of using his car. The employee could still perform his job role – he has not been banned from providing consultancy services after all.
The length of the driving ban would also be influential because using public transport may well be practical in the short term but less so in the long time.
Whilst there is no specific requirement on you to look for alternative work for the employee whilst he serves his ban, it may be productive to do so. If the employee is a good worker who you would not normally have had any problems with but for the ban, it may be counter productive to dismiss him because you will have lost a hardworking employee.
Consider, for example, whether another employee would be willing to undertake a job swap whilst the employee is banned from driving. If this can be arranged, both employees must be clear that the arrangement is temporary and both will revert back to their normal job once the ban has been lifted.
Ultimately, if it is not practical for you to retain the employee, then you should dismiss him with notice. You should still follow a fair disciplinary procedure, including inviting him to a hearing and allowing him to be accompanied, together with the right of appeal.
Making attempts to preserve the employee’s employment if this is practical, even though they may fail, will help show that it was a reasonable response in the circumstances to eventually dismiss the employee.
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Ask The HR Expert: A field consultant of mine was caught speeding and has now accumulated maximum points thus cannot drive anymore, what action can I take against him?
January 13 2012