Student lawyer, Amir Ben-Shabat looks at the case of Tayside Regional Council (appellants) v. McIntosh (respondent) –  IRLR 272 and asks “can employers use the loss of a qualification as a reason for dismissal?”
Mr McIntosh was recruited as a vehicle mechanic for Tayside Regional Council. The job advertisement indicated that it was necessary for the candidate to possess a clean driving licence. In his written application, Mr McIntosh confirmed that he had such a licence and this was verified at the interview. Following the interview, the Council sent a written offer of employment. The offer letter included various terms of employment but did not include anything relating to possession of a clean driving licence. Mr McIntosh accepted the role along with the terms and conditions.
After three years of working at Tayside Regional Council, Mr McIntosh was barred from driving following a motoring offence. Since the council could not find him alternative employment, he was dismissed. Mr McIntosh claimed that the dismissal was unfair.
A Scottish Industrial Tribunal found that the dismissal was unfair. The Tribunal held that the written offer, and the employee’s acceptance of it, constituted the contract of employment and that they were not permitted to look outside the terms of that document. Due to the fact that there was no specific clause in the employment contract referring to possession of a clean driving licence, the employers, according to the Tribunal, had fired Mr McIntosh because he did not have a qualification, which they had not specified was necessary.
Decision of the Employment Appeal Tribunal
The Industrial Tribunal did not believe that the job advertisement, the discussion about the driving licence at the interview, and what Mr McIntosh said, constituted prior negotiation to a written contract. On appeal, the EAT believed that the contents of the advertisement and the interview discussions could be construed as prior negotiation, which could have been superseded by a written contract. So, by considering those elements as prior negotiation, it can be argued that they were capable of forming part of Mr McIntosh’s wider terms of employment. The requirement of carrying out garage duties would have involved driving vehicles, and consequently, this would have required Mr McIntosh being in possession of a driving licence. This requirement could thus be seen as an essential continuing condition of Mr McIntosh’s employment.
Additionally, although it was quite unnecessary to the decision itself, the Industrial Tribunal speculated that the real reason for Mr McIntosh’s dismissal was to economise by reducing staff numbers, and that Mr McIntosh’s disqualification was used as justification. The EAT believed that this was inappropriate on the tribunal’s part since it was not an essential part of their decision.
Therefore, the EAT believed that the Industrial Tribunal was misdirected in law. As such, Tayside Regional Council’s appeal was upheld. Mr McIntosh was found not have been dismissed unfairly and that it was a fair dismissal on the grounds of capability.
Tayside Regional Council v McIntosh was a dismissal case on the grounds of capability – specifically, in relation to the qualifications of an employee. Qualifications usually include degrees, technical or professional qualifications that are relevant to the employee’s position. Holding a driving licence is a qualification, which is crucial for roles requiring the ability to drive. Cases under this category are not very common, since most employers have to be aware of the employee’s qualifications prior to offering them the role. This case is just an example of how the EAT looked beyond just the written contract of employment and accepted that the job advert was also relevant to the terms under which Mr McIntosh was employed. In this situation, the job advertisement stated that Mr McIntosh was required to possess a clean driving licence in order to perform garage duties. Due to the fact that he had lost his licence, his employers had every right to use this loss of qualification to dismiss him.
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