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Making a splash: Can a van driver be dismissed for soaking pedestrians?

Thursday 9th August | News

By Tom Sutherland

I regularly get asked: "how far does employment law go?" It seems an odd question to ask but I understand that most employers simply mean: "can you investigate nearly every type of poor behaviour" to which my answer is normally "yes!"

There has been a widely reported news story recently that largely explains my usual response. Namely, this concerns the story of a van driver who was immediately dismissed for driving through puddles and intentionally soaking pedestrians in Ottawa, Canada.

As with many situations involving professional drivers, the misconduct was caught via the dashcam of another vehicle. In this case, the vehicle in front had a 'bootcam' recording events behind the vehicle which recorded a 40 second clip of the van driver in question intentionally swerving into large puddles (which he could have easily and safely avoided) in order to soak three pedestrians in a row. As evidence goes, there is practically no other reasonable interpretation for the video (which remains available online). Naturally, the video was quickly viewed by nearly 1 million people and the matter was also referred to the Canadian Police. The employer concerned quickly announced that the individual had been dismissed and, in turn, the Police praised the employer for acting decisively and announced that they wouldn't take any action further to the loss of employment.

Now, obviously, the above-mentioned events occurred in Canada, so the real question is whether the same thing would happen over here, particularly given that employment law rights are viewed as being more favourable to employees on this side of the pond?

Well, the perhaps surprising answer is that, yes, in the majority of situations, the van driver would be likely to lose his job. This would be due to the bad faith shown by the driver in terms of: firstly, driving the vehicle in an unsafe/unprofessional manner; secondly, technically committing a minor form of 'assault' on the individuals concerned; thirdly, the fact that he performed his actions in a van that expressly identified the company he worked for (i.e. foreseeably damaging the company's reputation) and, finally, the consequent harm to the company's reputation by way of his actions being uploaded online. As a whole, it is likely that the majority of van drivers, even those with clean records within lengthy periods of employment, would face potential dismissal.

However, as is always the case with employment law, things can quickly change depending on the presence of any mitigating circumstances. Let's explore two examples:

EXAMPLE ONE - The puddles covered the entire lane and were unavoidable due to traffic in the opposite lane.

In the clip, there was no traffic in the opposite lane and, in any event, the puddles were only near the pavement. However, if the van driver literally couldn't safely avoid the puddles without risking an accident (i.e. because there was traffic in the opposite lane and the puddles covered his lane), he would have a clear defence because he could argue that he simply couldn't avoid the puddle barring a dangerous emergency stop or veering towards oncoming traffic. Naturally, he would be expected to brake to minimise the splash but, overall, the employer should account for the fact that he would, in this scenario, have no real choice but to drive through the puddle.

EXAMPLE TWO - It was done with the van driver's own car out of hours.

Let's say that the van driver had finished his shift (or had a day off) and performed the same acts in his own car. Naturally, his own car would be very unlikely to have any company markings on it and, rather, let's say that his employer only became aware of the incident on Youtube because he was identifiable as the driver through the video.

This would be a less serious offence because there would be less negative impact on the company from a public relations perspective. Yes, it may still damage the brand if his identity as a van driver for the employer became known online (as is getting increasingly common these days) but the incident will have happened outside working hours and it would not be largely foreseeable that his conduct during his own time would negatively affect the company.

On this side of the pond, it would be unlikely that an employer could safely dismiss a long-serving van driver with a clean record in the above two examples given the mitigating circumstances at play. Naturally, everything depends on the exactcircumstances, but speaking hypothetically it is doubtful that it would be reasonable for an employer to treat the two examples above as gross misconduct dismissal situations. This is unlikethe actual, real-life scenario, where an employer could dismiss on grounds of gross misconduct quite safely.

So, there we go, whilst some people aim to make a splash whilst performing their jobs, it should definitely be avoided whilst driving company vehicles!

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