accused cannot employ a driver to allow him to continue
performing his role. Again, there may be economic or practical
reasons for this. Similarly, the accused should demonstrate that
it is not possible for one of his employees to perform the
driving duties. This was established in McFadyen v Tudhope 1986
SCCR 712. In this case, the business owner was the only
person in the company who could drive. The High Court
accepted that, if he was to employ another person who could
drive, he would have to pay off one of his current employees.
The case also makes clear that potential hardship to
employees' families, and the particular circumstances of those
families, should also be taken into account.
to argue exceptional hardship on the grounds of hardship to the
employer. A typical example would be where the employee has a
specific skill-set and would thus be very difficult to replace. This
was the basis of a successful defence appeal in Findlay v
Walkingshaw 1998 SCCR 181, where a livestock driver had very
specific skills and would have been very difficult to replace.
Exceptional hardship was found on the basis of hardship to the
employer. Further cases providing useful guidance on this matter
include Marshall v McDougall 1991 SCCR 231, McIvor, supra, and
Howdle, supra.