Hi I would like the opinions of persons on this scenario.

The HSWA is criminal law and cannot be used to claim compensation or recompense in civil courts.

The Equality act and Disability discrimination act are designed so that they can be used to reclaim recompense or compensation in civil courts.

If by risk assessment we have deemed that someone is to high a hazard by driving on private land when they cannot drive on public highways (license revoked under medical grounds for public roadways) can we prohibit someone from driving on private land without being left open for civil action to be taken as we have risk assessed the task and we deem it too hazardous for that person to drive on private land.

I also mention the HSWA as it is criminal law which is more important to be followed legally than civil law, right? That criminal law supercedes civil law? (if anyone has any information on the framework of criminal law superceding civil I would appreciate that information)

We have spoken to NHS nurses and also their insurer and they think it can be ok for that person to drive though, they havent risk assessed the place and know little of our operation.

Any feedback much appreciated.

Hi Rocky
yes there is a precedent for HASAWA taking precedence over DDA.

Please click on link below for full details

http://www.oldsquare.co.uk/pdf_cases/1200296.pdf

PH2

Just read the Farmiloe case, interesting. I think Farmiloe possibly shot himself in his itchy foot, there's always at least one who simply doesn't want to comply.

As for your case rocky why is has the persons license been revoked? Ultimately if your assessment is based upon facts (I would suggest finding evidence to support your findings e.g. medical journals or the like) then I can't see a problem. If however you are basing your assessment solely on the DVLA's decision to revoke the license then it could turn around and bite you in the backside.

quote=DNW]Just read the Farmiloe case, interesting. I think Farmiloe possibly shot himself in his itchy foot, there's always at least one who simply doesn't want to comply.

As for your case rocky why is has the persons license been revoked? Ultimately if your assessment is based upon facts (I would suggest finding evidence to support your findings e.g. medical journals or the like) then I can't see a problem. If however you are basing your assessment solely on the DVLA's decision to revoke the license then it could turn around and bite you in the backside.

Hmmmm? Better to stand in front of a tribunal than stand in front of judge because you let it carry on in fear of a tribunal.

Who mentioned fear of a tribunal, just trying to cover all the bases.

DNW, yes, that has popped up already, I still dont agree with it myself, just because its private land and the condition is being controlled, we still have members of the public accessing the area, visitors and contractors as well as many vehicle movements. One day if he forgets to control the condition it could lead to an accident in an HGV as the person slowly drifts off into insulin deprived shock.

We will most likely not permit the person to operate, the tribunal will loom Im sure and we'll have to justify our decision.

On the basis of the information available about the dilemmas outlined, there appears to be a regrettable lack of interest in finding the basis of mutual understanding.

It's much, much less expensive in terms of time and money to use available techniques of exploring how to meet legitimate interests in novel ways than to regard legal compliance as the primary way ahead.

Any effort at mediation or involving an expert in work redesign can be done on a 'without prejudice' basis. While the content of such an interventiion can't be used in a court hearing, the very act of doing so stands a 'socially intelligent' employer in very good stead even if the matter ever does eventually become one of litigation.

Why not go ahead along one of the much less expensive, far more productive paths?

His job is driving trucks, we dont want him to drive and he wants to drive. I cant see him having other duties in the business or job redesign, its mostly an all or nothing situation. Its a good idea though but I just think that theres no way around it which is why Im trying to research justification which, on the basis of others and the drivers safety is fair. I mean if he hits something in an HGV and its a fatality the deceased's family wont care about the approach we took to try and work something out. They'll say why did you let him drive. We need him to not drive and if the DVLA change their opinion then so shall we is the way we view it.

They wont have a job really, they need to drive to do their job. DVLA say no HGV's on the road for type 1 diabetic people though he thinks he can do it on our property which we take umbrage to.

If he hits someone, kills them and our Risk assessment says it was ok then, were snookered for a traffic accident fatality on our site. If we had no knowledge of it then it would be not reasonably forseeable though we know now so we have to Risk assess it.

Yeah, true, it is hard which is why theyre going to fight tooth and nail to keep driving. Thats why I was looking for people with any experience with civil and criminal law on this subject and also whether there were any other areas that would strengthen our case for non use of vehicles on the site.

The case law of the PPE case was quite good, Ill take that to the company lawyer though a statute on this would be handy. Risk assessment eh, down to us to make the choice.

DVLA do not say not type 1 diabetics cannot drive HGV's. It only took me 5 minutes to find out what the requirements are to allow a type 1 diabetic to drive.

Sorry but it seems to me like you're looking for the easy option to satisfy the people above.

'Rocky'

When you write:
'its mostly an all or nothing situation. Its a good idea though but I just think that theres no way around it which is why Im trying to research justification'
on the basis of the information available, you may well be creating an avoidable set of problems.

As a qualified counsellor and chartered psychologist and chartered H R Practitioner, as well as a chartered safety and health practitioner, with some experience as an expert witness in employment tribunal as well as county court claims when I hear anyone define a situation 'as mostly all or nothing.... I just think there's no way around it', I'm sorry to say that invariably he or she is a major source of the problem.

Beware of a claim for constructive dismissal unless you show far, far more willingness to acknowledge the standpoints both of the employee and of the professional advisers who support him.

As the issues you've outlined involve employment rights that you apparently either don't understand or comply with, it's in everyone's interest (including your own) for you to get specialist help when you're out of your depth.

‘Criminal law’ does NOT supercede/supersede (definition – replaces or take the place of…) ‘civil law’. Some might consider that one has precedence over the other, and there are cases where this may be the case, although I suggest that in the main they serve 2 different purposes.

I am wondering what the purpose of talking to an NHS nurse or anyone else for that matter, about the issue if they don’t, by your own admission have much knowledge of your workplace and operation. It seems a rather futile exercise to ask someone advice about something without providing them with the relevant information!

You can of course set your own rules within the constraints of the law, be that statutory or otherwise. You CAN’T generally prevent someone from taking a civil action, but it is down to you to defend or justify your actions. That’s just part of the day job.

I am not sure if it stands to reason that the withdrawal of an LGV licence would necessarily mean that the same restriction would apply to ‘private’ land, although your risk assessment may very well conclude that is the case. That is your decision to make and if necessary justify. The revocation of a licence by the DVLA does seem like a reasonable starting point though, and I am sure that it would be 'persuasive' to many of us.

My understanding is that you CAN’T hold a licence to drive LGV, PCV or classes C1 and C1E if your diabetes (whether type 1 or 2) is treated with insulin. Diabetes UK is a good source, try
http://www.diabetes.co.u...blue-light-services.html

You should also read the notes for the DVLA Medical examination report D4 http://www.dft.gov.uk/dv.../pdf/leaflets/INF4D.ashx

In saying all that, I have some sympathy with your ‘dilemma’. I tend to think that you are trying to make the best decision for the 'right' reasons and this is made more difficult because the individual involved is understandably anxious about losing his job and livelihood. However, if you can’t make reasonable adjustments or find reasonable alternative work, with reasonable retraining opportunities, then you may have little option but to dismiss on capability grounds.

However, I can’t help but feel that your interpretation around criminal/civil law issues is rather muddled and seeking advice from a nurse without them having the facts; flawed!

Ps I suffer from diabetes!

EAT stands for "Employment Appeals Tribunal".

Bob

The diabetes UK website at http://www.diabetes.co.u...blue-light-services.html says

"If your diabetes is treated with diet or diet and tablets, you may hold a licence to drive either a large good vehicle (LGV) or a passenger-carrying vehicle (PCV). If your diabetes is treated with insulin, you will be unable to hold either and LGV or a PCV licence. If your diabetes is treated with insulin, you will automatically lose the entitlement to drive vehicles within the C1/C1+E class. This includes vehicles between 3.5 and 7.5 tonnes with a trailer, up to a combined weight of 8.25 tonnes. However, you may apply to be assessed individually for fitness to drive these vehicles.".

The DVLA medical notes at http://www.dft.gov.uk/dv.../pdf/leaflets/INF4D.ashx says much the same, as follows

"If you are an insulin treated diabetic you may NOT obtain a licence for categories C, C+E, D, D+E, D1 and D1+E UNLESS you held a HGV/PSV licence valid on 1 April 1991. The Traffic Commissioner in whose area you lived, or who issued the driving licence, will need to have had knowledge of the insulin treatment before 1 January 1991. Insulin treated diabetics applying for C1, C1+E categories (vehicles between 3.5 and 7.5 tonnes with a trailer up to a combined weight of 8.25 tonnes, or 12 tonnes will need a specialist assessment, and meet a strict criteria for diabetic control and the higher medical standards needed for large lorries (LGV).".

So, there does appear to be some scope for individual assessment for some LGV in the class C1 and C1+E categories.

The main issue appears to be the type of treatment that you use for control rather than the type of diabetes that you suffer from. It appear that the main considerations are the risk of hypo's with that treatment and the stability of control. It is interesting that they have homed in on insulin as a treatment as some oral treatments for diabetes do carry a higher risk of hypo than others, where the risk is low or negligible. In fairness some sufferers do have significant problems with control for a variety of reasons and this can take some 'experimentation' with different types of insulin to achieve, and some never do. Many people will not realise that some people suffering from type 2 diabetes are treated with insulin, or may use insulin in addition to oral medication as well. There are also relatively new treatments that are injected, but are not insulin.

To slightly broaden the discussion, there are cases where the entitlement to drive certain classes on an LGV licence may be withdrawn to a medical condition, but the person could continue to drive the same class of vehicle under 'grandfather rights' - off the top of my head C1 and C1+E. I actually have this as a case at work. One of our drivers who held a licence for LGV, had this taken away as his eyesight had deteriorated, but he is (legally) able to continue driving the SAME vehicle using his 'grandfather rights'. The driver himself is 'uncomfortable doing so, and both he and I find the situation slightly odd! I wrote to the DVLA and the response was that he doesn't meet the eyesight criteria for an LGV licence (hence it was withdrawn) but he meets the eyesight criteria for a 'car' and because he (like many of us took and passed his test some time ago) he has acquired 'grandfather rights' to drive the very same LGV vehicle. I am not sure if a similar scenario would apply to people suffering from other conditions such as diabetes though.

Ramble over, but hope this helps

Phil

Since type 1 diabetics cannot drive lgv on a public highway anyway, no matter what degree of control they have. That includes vehicles over 3.5 tonnes (never mind the fitness)
Anyway, do what degree is your property "private".
I only ask because of the other problem with private property and public highways, that being that IF the public have access to that property during the hours it is open then it is deemed to be part of the public highway (brought in after several people avoided prosecution for DwD by staying on the pub property in their car)