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Driving examiner wins unfair dismissal claim after driving student home after failing test

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Mr H Wilkinson v Driver And Vehicle Standards Agency Mr Wilkinson is a former police traffic officer. Following his retiral from the police service, he obtained employment as a driving examiner.

One of policies to which Mr Wilkinson was subject related to the situation where a driving test required to be terminated early. When that situation arose, the examiner was required to fill in a form known as a DL25 with a description of the circumstances in which the test was stopped.

The induction training received by Mr Wilkinson included a slide presentation. One of the slides dealt with the situation of early termination of a test. It stated: “Once a test has been terminated the candidate must not be allowed to drive back to the test centre. The examiner must not drive the candidate’s car.

On 2 November 2018 Mr Wilkinson was conducting a driving test. The test was terminated early approximately four and a half miles from the test centre on a country road outside Elgin. Mr Wilkinson contacted the candidate’s driving instructor, whose car the candidate was using, and was told by the instructor that he was insured to drive the car back to Elgin. Mr Wilkinson thereafter drove the candidate back to the test centre. Prior to doing so, he did not contact his manager, Mr Neill, to discuss what he intended to do.

Mr Neill did not become aware of the incident until almost seven weeks later when he heard about it by chance from a third party. Mr Neill reported the incident to his line manager, Ms Archer who appointed an investigating officer.

Mr Wilkinson was dismissed because trust had been irreparably damaged. The judge in the ET found that the investigation process had been flawed and the dismissal was unfair. However, he found that Mr Wilkinson was ‘wholly the author of his own misfortune” partly because as a former police officer he knew the importance of following the rules and because he had kept quiet. It would therefore be inequitable to make any compensatory award. Mr Wilkinson appealed.

The Hon Lord Fairley allowed the appeal partly because he agreed with the submission that to reduce the award by 100% was perverse when the investigation had been flawed, though he did find that it was open to the judge to make such a reduction. He therefore remitted the case back to the same employment judge for reconsideration of the awards.

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