Imagine this. You employ a driver who collects and makes deliveries for your business. On one occasion he or she was transporting something using a trailer. She calls late at night to tell you that she has pulled over onto the hard shoulder because the trailer’s brakes are not working, and to drive like that would have been a danger to herself and other road users. You send out an engineer to assist and ask your employee to stay in the vehicle.
For whatever reason, after three hours the engineer hasn’t yet arrived. It’s freezing cold. If she stays where she is any longer she’ll be in serious danger. Eventually she decided to drive off, leaving the trailer with faulty brakes where it was.
Sounds like a reasonable decision, doesn’t it?
I’ve based this scenario on a case from the United States which is described in the linked article. In that company, there happened to be a rule against abandoning trailers, so the driver was dismissed.
I haven’t read all of the facts of the case – it may be more complicated. And I’m not an expert in US law. However, I’m remarking on this case because of its interesting facts and to remind you that in the UK, it would not be lawful to dismiss an employee in the (possibly simplified) circumstances described above:
- The dismissal would probably have been unfair. We can see the point of having a rule against abandoning trailers – but sticking to that rule when the driver or the public would be unfair. However, awards for unfair dismissal are generally capped, and an employee need two years’ service to bring an unfair dismissal claim.
- For whistleblowing claims, two years’ service isn’t needed and damages are not capped. But in the UK, whistleblowing protection specifically protects workers from detriment or dismissal because of disclosures of information. He wasn’t really dismissed for disclosing information – he was dismissed for driving away without the trailer. Had he remained in his car and frozen to death, he wouldn’t have been dismissed.
- But for certain health and safety dismissals, two years' service isn't required and damages aren't capped. This includes dismissal of employees who leave or stay away from a dangerous workplace or take action to prevent danger. Those provisions may well have protected this driver. As I’ve said, I have simplified the situation. However, these legal protections of the UK’s do seem to be broader than the US’s (which is known for ‘laissez-faire’ employment protection).
- In addition, the business would probably have breached health and safety regulations in several ways.
- As a final point, I should mention that the court found in favour of the employee, though there was a dissenting judgment favouring the business.
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Mr. Cluck told Mr. Maddin not to leave the trailer and gave him two options: drag the trailer with inoperable brakes, or stay put until the repairperson arrives. Mr. Maddin knew that dragging the trailer is illegal and concluded that he might not live much longer if he were to wait for a repairperson. So, Mr. Maddin unhitched the trailer and drove off. Fifteen minutes after Mr. Maddin left—i.e., more than three hours after he first notified TransAm that he was stranded in subzero temperatures—the repairperson arrived. Mr. Maddin drove the truck back to meet the repairperson, who then fixed the trailer’s brakes. Less than a week later, TransAm terminated Mr. Maddin’s employment for abandoning the trailer.