Hi,

Client worked as driver, 2 years, lost drivers licence through drink driving , offence out of work.. Employer summarily dismissed.

Had sanction due to misconduct, 26 weeks subsequently reduced to 13 weeks.

Does any one know if there is any defence? I have checked commentary in Sweet and Maxwell and DMG - Law used goes back to 1950,s in many cases and seems out of step with modern employment Law where client would have had case for unfair dismissal if had not been out of time.

All I have is some weak arguement about employer having a choice not to dismiss, in fact entire work force was made redundant the following month- but this dosent even approach the misconduct bit for JSA

Nick Wright

I don't follow. If client was a driver and could no longer drive as disqualified then how can you argue the employer was wrong to summarily dismiss him/her? Client had clearly breached the employment contract in a way which made it impossible to continue in the job. I can't see that there could have been a case for unfair dismissal.

With voluntary leaving cases they always ask the employer how long the employment would have lasted if the employee hadn't walked out. That then tends to be used in the decision for the length of the sanction. Misconduct is often regarded as equivalent to voluntary leaving so it might be arguable that the fact he would have been made redundant a month later should be relevant to the period chosen for sanction.

I really can't see any hope of not regarding it as misconduct for beenfit or employment law purposes. It's the truly classic example of misconduct outside work which impacts on the ability to do the job. If someone is convicted of molesting his grandchild at home, are you going to say it's unfair to dismiss him from his job working with children? OK, a reductio ad absurdum, but you get the point.

many thanks for your replies, I wasnt expecting any!

In particular the vuluntary leaving approach was something I hadn.t cosidered - so that is 2 weak arguments!

My understanding is that there would have been an unfair dismissal due employer not following statuatory proceedings, (DDP) and reasonableness for employer to consider alternative work. Neither was done, perhaps not surprisingly as they have saved on redundancy payments

the dismissal in employment law isnt a conduct dismissal but a qualification dismissal. My understanding is that activities occuring out of work are rarely considered as misconduct except in extreme cases such as child molestation as above. This 'privacy' is well accepted in employment law and there are cases of HR art 8 being used. - I just dont have the expertise to know if I can mount a similar arguement within social security law?

My cl has argued simlarly that his dismissal wasnt based on misconduct but on qualification ie no driving license similar to employment law. The SOS submission uses 50 year old definitions of misconduct and similar aged decsions on drink driving occuring out of work. There probably was a similarity between social secrity law and employment law at that time but the world has moved on except in social security law?

thanks again

Nick

Reg 70 (a) JSA Regs (and reference to R(U) 5/54 in notes to the Regulation in Wood) would appear to determine that the sanction should end when the workforce was made redundant - i.e a month later. One can of course appeal on this point alone or as a secondary argument to that about the sanction itself.

That makes sense Neil - I felt it had to be there somewhere.

"the dismissal in employment law isnt a conduct dismissal but a qualification dismissal. My understanding is that activities occuring out of work are rarely considered as misconduct except in extreme cases such as child molestation as above"

Surely the misconduct in this case is the breach of drink/driving laws, which the employee knew - or ought to have known - would result in him/her fundamentally breaching the employment contract? What was the employer supposed to do? The employee could not carry out the job and this was due to his/her own misconduct. If HR legislation is being used to avoid the obvious result then it seems to me to be just one more instance of the law of unintended consequences.

Many thanks for your help, I was feeling so pessimistic about this case which probably explains my desperation in considerating other areas of law

have ordered copy of R(U) 5/54 today - pretty hard to find anywhere else

cheers

Nick

It used to be the case in the Fire Service the discipline regulations allow the employer to dismiss for 'criminal conduct' or 'bringing the service into disrepute' both offences can and often are committed off duty and can lead to dismissal. The regulations changed but I doubt for the better, it would be a first.

In a case like this I would agree with what was said before and would investigate the possiblility of alcohol dependance as a defence (for the JSA issue) but as it wasn't originally mentioned I suspect it was just a one off incident.