The claimant was a former police traffic officer and following his retirement from the police service he took up employment as a driving examiner with the respondent. This commenced in April 2016.   

One of the requirements on the claimant is that a DL25 form must be completed when a driving test is terminated early. Additionally, at the induction training received by the claimant the ‘slide’ said that once the test has been terminated early the candidate is not allowed to drive the car back to the test centre and the examiner must not drive the candidate’s car.  The reason for this relates to insurance cover.  In November 2018, the claimant terminated a test early. The car was approximately 4.5 miles away from the test centre on a country road.   The claimant contacted the candidate's driving instructor and he was told that he was insured to drive the car back to the test centre.  The claimant did not speak to his manager about this either before or after.  He also did not record in the test log or the DL25 form that he had driven the candidate’s car back to the test centre.   

The claimant’s manager only became aware of the incident 7 weeks later after hearing about it from a third party.  The claimant accepted that he had driven the vehicle back and he was wrong to do so. He said he did it to ensure the next test was not cancelled.  An investigation was commenced but the claimant was not suspended and continued to work without any additional supervision.  The claimant was informed that it could be potentially gross misconduct.  When asked about the incident, the claimant stated he was doing it in the best interests of the candidate and the respondent.  He also said he did not mention it as he did not want to incriminate himself.  He also said that he did not comment on it in the forms as he did not want to lie so felt it better to be vague.

The claimant was invited to a disciplinary meeting using a pro-forma which was not completed.  It did not contain any details of the allegations nor did it actually have the date or time of the proposed meeting.  The claimant’s line manager had written an email outlining that he had trained the claimant, felt he could trust the claimant but that it had been eroded by this incident.  That email was never put to the claimant.  A decision was made to dismiss the claimant for gross misconduct on the basis that he had lied by not adding the information in the DL25 and that the trust between employer and employee was no longer present.  The claimant appealed this but it was a mere review of the decision rather than a complete re-hearing.  

At first instance, the Tribunal found that the dismissal was unfair noting that allowing the claimant to continue even when suggestions were made that the employee could not be trusted was problematic. There were also issues with the procedure with the investigation being scant and the claimant not being informed of the trust issue being noted by his line manager. Despite the finding, a Polkey Reduction was made of 50% and then there was a reduction in the award fully relating to the claimant’s conduct. The case was appealed on  this basis. The EAT found that the Tribunal had erred by not asking even if a fair dismissal was a possible outcome, would the employer in fact have dismissed as opposed to imposing some lesser penalty?  This meant that the actual finding of a Polkey reduction could have been made as all of the questions were not discussed. The EAT also found that the 100% reduction did not sit well with the fact that the claimant was allowed to continue his work during the investigation. Accordingly, the appeal was allowed with the case remitted back to the Tribunal. 

Practical Lessons

The decision of the Tribunal at first instance was, at some points, vague.  This led to difficulties with the reduction in the award based upon ‘conduct’.   The need for judgments to examine all aspects was clear in this judgment where it led to difficulties for the respondent in the appeal.  The application of the stages/tests must be set out and with the Polkey reduction this led to the appeal being successful.  There were also issues with the fact that the claimant was allowed to continue during the investigation even though the line manager stated that he had lost trust in the employee.  This must be borne in mind in making a decision to suspend an employee during the investigation/disciplinary process. 
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-h-wilkinson-v-driver-and-vehicle-standards-agency-2022-eat-23