Dismissed for what might have been

Posted: 2nd September 2011

In Wincanton plc v Atkinson and another, the Employment Appeal Tribunal (EAT) held that the decision of a haulage company to dismiss two of its drivers who continued to perform their duties when they had inadvertently neglected to renew their Heavy Goods Vehicle (HGV) licences was within the range of reasonable responses open to the employer and the dismissals were therefore fair.

Stephen Atkinson and Nicholas Marrison worked for Wincanton plc on a specialised contract that required them to have not only an HGV licence but also an additional European licence that enabled them to carry dangerous loads. As both men were over 45, they were required to renew their HGV licences every five years, which entailed passing a medical test.
In June/July 2009, a routine check revealed that Mr Atkinson had driven without a licence during the previous month and Mr Marrison had done so for five months. The company decided that the potentially serious adverse impact of the men’s conduct was sufficient to justify their dismissal – the company’s insurance policy could have been invalidated and it could have faced action from the regulatory authority, thus jeopardising its operator’s licence. Also, had it become known that employees of the company had been driving without valid HGV licences, this could have damaged the company’s standing when competing for contracts in a very competitive market.
Mr Atkinson and Mr Marrison claimed unfair dismissal. The Employment Tribunal (ET) focussed on the fact that the risks to the company were entirely speculative and no actual adverse consequences had ensued. Even though it found that ‘the consequences of driving a lorry loaded with dangerous goods… without insurance are horrific to contemplate’, the ET concluded that Wincanton plc had acted unreasonably in treating the admitted serious misconduct as sufficient reason for the dismissal.
The EAT overturned this decision. It said the ET had erred in basing its decision on the absence of any actual adverse consequences and attaching minimum weight to the potential for adverse consequences.
In the EAT’s view, the finding that no reasonable management would have decided to dismiss the drivers was an error of law. It would mean that employees who act negligently in breach of their contracts of employment, for example an airline pilot who inadvertently or negligently drank too much alcohol, could not be fairly dismissed if the illegal act had no harmful repercussions for the employer.
The EAT held that dismissal was well within the reasonable range of responses open to the employer in this case. The dismissals were therefore fair and the appeals allowed.