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John Dumigan
Member - 2 posts
Down District Council employs HGV Drivers to drive their refuse vehicles. When drivers are on leave, sick or on training etc we have a number of ?relief? drivers who are employed for the purposes of emptying bins but who have acquired a HGV licence. For various reasons, mostly related to the high levels of sickness and staffing problems, some of the relief drivers have been continuously carrying out driving duties for more than a year.
These drivers are now claiming that, by default, they now have a contract with us a driver. They have demanded that they be made permanent drivers. We have already made one relief driver a permanent driver but have been advised that we should not make the other relief drivers permanent.
Our advice has been that to do so would fall foul of the equality legislation related to employment, ie we didn?t go through the normal recruitment process where posts have to be advertised and open to all sections of the community (our existing drivers are mainly from one religious denomination).
I feel that the relief drivers are in a position to claim contractual rights as drivers. Would you agree or does the equality legislation take precedence?
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Tony Bertin - Employment Relations Solicitors
Online advisor - 4 posts
John
Thanks for your query.
You do not say whether the drivers are employed through an agency and so for the purposes of this answer I am assuming not. If they are then your position is a little easier.
There are only employees; whether they were casual or not makes little difference. They are entitled to full employment protection in accordance with length of service of which the most important right is the right not to be unfairly dismissed, which comes in after a year.
If he is an employee under a series of individual separate contracts, which apply only while he is actually working, it is unlikely that he will be able to build up the period of continuous employment required to be eligible for protection from unfair dismissal. Those with more than 12 months are almost certainly protected.
However, Northern Ireland is a special case because of the way the law is written. Prevention of religious discrimination is a particular burden for employers and has to be implemented at EVERY stage including the preliminaries to recruitment e.g. advertising.
If the relief drivers do have more then 12 months service then I see little alternative but to formalise their position. However I think perhaps a line should be drawn there and those with less than 12 months should have to obtain permanent jobs in open competition. There is an element of potential discrimination about this but I cannot see that a claim for unfair dismissal could be resisted simply by saying the dismissal was to avoid unspecified, unpresented claims for discrimination. It might just amount to ?some other substantial reason? but I have to say I would not like to be the advocate running that defence!
If you need further help please look at the employment law guide on our website www.employment-relations.co.uk or call 01303 840001. You may also e-mail me on tonybertin@employment-relations.co.uk.
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Regards,
Tony Bertin
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