Vickers v London Fire and Emergency

In construing an employment competency and pay provision, the words “for genuine reasons, the employee is unable to drive” do not excuse every employee who lacks a driving licence or is unable to drive. The qualifying reasons must be genuine and outside the employee’s control or responsibility. Personal unwillingness, failure to learn, bad driving, or disqualification following criminal driving will not ordinarily satisfy the condition. The provision operates in the nature of a force majeure clause. It is not confined necessarily to medical reasons, but it protects against inability for which the employee is not responsible. A construction that awarded full competency pay without the required driving competency would produce unfair and counterintuitive results and was rejected.

The appellant, a firefighter, had joined the service before a driving-licence requirement was introduced for new recruits. The employment conditions required driving to be one of the competencies relevant to the highest level of pay, subject to an exception where, for genuine reasons, the employee was unable to drive.

The appellant argued that the exception applied whenever he was lawfully unable to drive, including where he had never obtained a licence or was disqualified. The respondent authority contended that the exception applied only where the inability was genuinely beyond the employee’s control. Mrs Justice Sharp accepted the authority’s construction in the Queen’s Bench Division. The appellant appealed on the question of construction.

1. Appeal dismissed. Lord Justice Rix, with whom Lord Justice Lloyd and Lord Justice Pill agreed, upheld the construction adopted by Sharp J.
2. The phrase “for genuine reasons, the employee is unable to drive” did not mean that any lawful inability to drive automatically excused the driving competency. Such a construction would make the phrase “for genuine reasons” redundant and would produce the counterintuitive result that a firefighter disqualified for dangerous driving could become entitled to the highest pay without acquiring the relevant competency.
3. The words require reasons that are genuine in the sense that the inability to drive is outside the firefighter’s control and responsibility. The expression was treated as operating in the nature of a force majeure clause. The court did not accept that the exception was necessarily confined to medical reasons, but it rejected an interpretation covering laziness, unwillingness to learn, inability to obtain a licence through bad driving, or criminal and disqualifying driving.
4. The wider construction was also inconsistent with the employment context. The driving requirement had been introduced because a shortage of appliance drivers was compromising the service. The authority had a legitimate interest in maintaining flexibility and in preserving fairness between the earlier group of firefighters and recruits who joined after the licence requirement was imposed.
5. The appellant was not entitled to retain a privileged position indefinitely. Once he obtained his driving licence, he was in the same position as other licensed recruits, subject to completing the necessary training and experience. The appeal was dismissed.

• Court of Appeal (Civil Division) — Vickers v London Fire and Emergency, [2011] EWCA Civ 494: appeal dismissed.
• Queen’s Bench Division — Mrs Justice Sharp’s reserved judgment dated 21 July 2010: the respondent authority’s construction of the employment provision preferred.