Introduction to this document

Confirmation of dismissal due to statutory bar

The dismissal of an employee is potentially fair if they couldn’t continue to work without contravention of a statutory duty or restriction. Assuming you have followed a fair dismissal procedure, use our letter to effect a dismissal on this ground.

A statutory bar

Whilst dismissals under this category of potentially fair reasons for dismissal are relatively rare, the three most common examples are an employee who has been disqualified from holding a driving licence and whose job duties predominantly involve driving, an employee who can no longer work without contravening the provisions on illegal working (for example, because their permission to work in the UK under the points-based immigration system has expired and the Home Office will not renew it) and an employee who works with vulnerable adults or children but is placed on the DBS Barred List as unable to continue in that type of work. It does not matter who would be breaking the law to fall into this category - it can be the employer or the employee.

Not so fast

It’s for you as the employer to prove that the reason for dismissal falls with this designated statutory reason. You also can’t dismiss an employee just because you believe their employment may breach a statutory duty or restriction - you must be able to show that continued employment of the employee does actually breach a statutory duty or restriction. As with all dismissals, it’s paramount you act reasonably in all the circumstances in deciding to dismiss for this reason. In particular, give consideration to:

 the extent to which the statutory restriction affects the employee’s ability to do their job

 the length of the restriction

 whether or not the employee can be redeployed to an alternative role within the business, either permanently or temporarily. If the restriction interferes with only a small amount of the employee’s job duties, it is probably reasonable for you to seek to reallocate those duties elsewhere in the business until the restriction has ended. Likewise, if the employee is only to lose their driving licence for a couple of weeks, even if they’re employed as a driver, it’s probably reasonable to either provide temporary non-driving duties (even if those aren’t on the same hours or same rate of pay) or agree with the employee for them to take annual leave or a period of unpaid leave until they can resume normal duties.

Fair procedure

A fair dismissal also necessarily involves following a fair procedure. After considering the matters highlighted above, consult with the employee and then arrange a formal meeting on notice if there’s no viable option left other than dismissal, after which you would issue the Confirmation of Dismissal due to Statutory Bar letter. In the meantime, take care that the employee isn’t working if to do so would be illegal.