Where a valid driving license is needed for workers to perform the duties attached to their jobs the question to be asked is what happens if a worker’s driving license is withdrawn as a result of a traffic offense. In those cases, can the company interrupt or terminate the employment relationship?
The Supreme Court shed light on this issue in a judgment concluding that the withdrawal of a driving license may entail the interruption or termination of the employment relationship.
The subject of the debate raised in the specific case examined by the court was whether the employer’s decision to interrupt the employment relationship, as a result of the employee temporarily being without the driving license needed to carry on his activities, concealed a tacit dismissal, or whether instead it amounted to a lawful interruption of the employment relationship.
And so, although the appeal was ultimately dismissed because the compared judgments were not found to be contradictory, from the conclusions explained by the Supreme Court two different scenarios may be inferred:
1) Where the driving license is withdrawn for a known period and will be recovered automatically, the parties may interrupt the employment relationship by mutual agreement.
2) However, if, for example, the recovery of the driving license depends on the worker passing a driving test, the length of the withdrawal period becomes uncertain and the employer does not know when the worker will be able to resume his duties. In this case, the employer has the option to dismiss the worker on the ground of supervening unfitness.
Nevertheless, this may be questionable if, in cases where withdrawal of the license is for a known and specific period, the company has the power to dismiss the worker (not just choose interruption of the employment relationship), without that dismissal being held unjustified, if it is contested.
If there is an express provision in the applicable collective labor agreement, its terms have to be applied. Hence, entering judgment on March 24, 2017, the Catalonia High Court held to be unjustified the interruption of the employment contract of a worker whose driving license had been taken off him, on the ground that the collective labor agreement provided that, in the event of withdrawal, the employer had to assign him another job not needing a driving license.
Otherwise the specific circumstances of the case have to be examined, as well as any future court decisions determining the best measure to be adopted in each scenario and whether or not the case should depend on the potential recovery of the driving license, with observance at all times of any provisions that may have been laid down in an applicable collective agreement.
Sofía Espizúa
Garrigues Labor and Employment Law Department
