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Posted By Footballer1
Hi
Wonder if anyone has any views / advice.
We have a scenario of an intenral driver who has been banned off the road [3yrs possibly reduced to 2 with a driver awareness course]. Problem is, he needs to drive a site vehicle to retain his job [very good employee apart from driving ban] which we would like to accomodate, but with some kind of observation / re-training / more stringent testing in the future
Has anyone been in this postion and what did they do [if anything]? and if not, does anyone have any constructive suggestions as to what may help?
Regards
WJ
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Posted By Colin Reeves
There is the possibility that he may end up driving on your premises whilst over the limit. This is clearly a safety hazard.
It has been known for HR to agree a contract with him that allows him to drive but also allows for random testing (either internally or using a contractor).
Be aware that areas which appear to be private land may in fact be classed as a public highway so the ban could still apply. Best get legal advice, but unless you have a method of ensuring members of the public do not have access (an automatic security gate or a manned security gate) you may find that he is unable to drive on your site - is there a gate anywhere without security / padlock anywhere? Can unescorted visitors be on site?
Colin
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Posted By SteveD-M
There is no legal requirement to have a licence to drive on private premises. That said there would need to be a pretty thorough risk assessment, rehabilitation course and testing almost on a shift by shift basis to establish if the guy is fit to work. The construction site (assumption) is hazardous enough without introducing this...
Depends on the type of vehicle the guy is driving and level of risk.
Don't think I would be encouraging this even if he was a really good guy..
There are courses available.
Drop me a line if you need any more detail.
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Posted By martinw
Footy
Doesn't have to be just on a road: even though the premises may be private, they must also hnot be a 'public place'. If there is open access for the public to this site then the ban applies for any motorised vehicle which he held permission for previously. The wording is something like 'on or road or in a public place'. Hence, supermarket car park is not a road but is a public place therefore this would be a contravention of the ban if driving there.
Keep the public out!
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Posted By Swis
If you are talking about the use of forklift/lift truck etc then driving license is not required for such activities and you come under no obligations whatsoever. Loosing license would be classified as a personal matter and the employee is not required to inform you as such. Hence, the relationship between you and the employee is unaffected. Monitoring would be required should the employee has been seen under the influence of alcohol at your premises. Any excessive monitoring on the suspicious purely because the employee has been banned due to drink driving would be classed as discriminatory action.
However, if the employee is required to have a licence to drive a vehicle then of course you can not allow him to carry on driving and must remove him from the with immediate effect.
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Posted By Footballer1
Gents
Thanks for the responses.
There are no real issues regarding private land and access, as there are pretty good security measures in place with manned barriers, 24hr security - and a clear definition of site boundaries, with very little possibility of an unescorted visitor coming onto site
There is still the possibility that he may end up driving on our premises whilst over the limit, but so could any other driver [theoretically]
While I understand that there is no legal requirement to have a licence to drive on private premises, we are trying to sensibly manage the risk wIthout going overboard and a through in-house testing regime is just not practical [not just due to cost]
The employee is generally driving a Sideloader / Frontloader and does mix with other site traffic of the same type, with the normal associated risks of mobile plant.
We are not trying to encourage this in any way and do plan to "let out" some of the measures we put in place as a shot across the bows for other employees.
Steve, you indicate that There are courses available, would it be possible for you to indicate where I cna get some information?
Regards
WJ
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Posted By John J
Your insurers will give you guidance on whether he is covered to drive on site. Normally the answer is yes.
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Posted By John Richards
So it's a forklift.
No licence (RTA) was/is required to drive it when not on a road or place open to the public [during opening hours]
So: what's changed ?
One presumes that you have an alcohol policy, and had one before the person was prosecuted ?
If so, the normal policy just carries-on.
Oh, and there is legal precedent to carparks....basically the parking BAYS are not public places....the byways inbetween the bays are...
And for the purpose of insurance there is legal definition:
Cutter v Eagle Star (1998).
The defendant insurance company would be liable to pay damages to Cutter if the car in which he was injured was on a road when he was injured. The car was in a car park.
The Court of Appeal decided that a car park was a 'road' for the purposes of the Road Traffic Act [1988] because it has been Parliament's intention to provide compensation for those injured in car accidents.
The House of Lords reversed this decision. Lord Clyde saying:
"It may be perfectly proper to adopt a stained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to applying unnatural meanings to familiar words or to stretch the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must be particularly so where the language has no evident ambiguity or uncertainty about it."
One also presumes that you are insured. So: no change ?
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Posted By martinw
I think that I will wait for the next case to decide the definitions John. Bays in a car park fit the same criteria of being in a public place as any other, regardless of pedantry. If a court stated that up was down I would wait for the appeal rather than quote it as evidence to make a point.
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Posted By Bob Shillabeer
Antone banned from driving for drink or drugs or in fact any other traffic offence is not banned from driving on private land. No licence is needed to drive antwhere other than on the public highway. So if your factory is privately owned land with controlled access the he is not breaking the law by driving any type of powered machine on that site. If there is a possibility of him being under the influence when driving such a vehicle on your company's site then that falls under a different legal position entirely and is nothing to do withthe raod traffic laws. Are you saying that some people who work for you work when under the influence? That is not a good position to be in as an employer because that would mean you are faced with a civil law case if someone is injured bya person driving whilst under the influence, You are going onto very dangerous ground. But is it illegal to allow him to drive when at work? the answer is simply NO. But look at the other implications before allowing him to drive on your worksite.
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Posted By Raymond Rapp
Does the employee have a drink problem? If not, I cannot see that his driving ban is relevant to your workplace. He is no better or worse an employee for his conviction and has been duly punished by the court.
Ray
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Posted By John Richards
I believe the next stage of the appeals process, after the house of lords, are the european courts.
It matters not. As said before, a driving licence is only necessary to drive in areas that are governed by the road traffic acts. Unless the fork lifts are operated on public highways or areas open to the public [during the hours when the public are allowed onto those areas] a driving licence is not needed.
Still, you could always throw him into some water. If he floats he's drunk.
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Posted By Phil Rose
Crikey footy - you opened one up here. And I appreciate your dilemma where an otherwise good employee has 'messed' up and you want to do what you an to help support and keep them.
I can't agree with the notion that the offence itself is not relevant to the workplace, I would have thought that bearing in mind his kind of work, that it is of SOME relevance. Similarly, although stopping him from driving MAY be discriminatory, I would doubt if that this particular act of discrimination (if it is such) was actionable under 'discrimination' laws. There are plenty of examples of employment cases where peoples behaviour in their private lives have resulted in action being taken against them by their employers.
But the debate on whether or not the ban covers 'private land' or only those covered by road traffic acts is an interesting one.
You can be convicted of drink-driving anywhere the public have access, including private car parks - you do not have to be on a public road and contrary to popular myth, the police can require a breath test on a pub car park. As a general definition, a public place is an area to which "the public have access or which members of the public are to be found without having obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied."
Please, everyone, I am not suggesting that there is a direct comparison between being able to be convicted of DD in a 'private' place to which the public has access, but I do think that it is worth you delving a little deeper to see if the ban itself would extend to similar places i.e. those that are considered private but which have public access. It would seem to make some sense that it might!
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Posted By Fred Pratley
I admit that I know of only few people who have been caught for DD and mostly a 12 month ban has been imposed. The only person I know who got more than this was a local landlord who was made an example of and he got 18 months ban.
I would want to know what caused your man to get 3 years and see if this could be sufficient for a foreseeable over the limit at work.
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Posted By SteveD-M
I must admit I haven't read all the post (it's Friday)...are we getting the full story here?
A 3 year ban? First offence?
If the guys council was worth his salt he would have put this in as mitigation...
Doesn't sound like first offence to me which perhaps would cause me to think the guy has done this before or a combination of other offences which have lead to this..
The guy may have a problem and as a caring employer you would want to do the right thing...solution structured rehabilitation program ..stick to it or I'm afraid it's the long walk...
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Posted By AHS
Dismiss him (he is after all a criminal) and then shame him in the local newspaper preventing him from obtaining similar work.
H&S the caring profession.
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Posted By Decimomal
A 3 year disqualification for excess alcohol would either be for a something like over 3 times the limit or a second disqualification in 10 years.
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Posted By martinw
OK so back to it then: going forward, is this thread going to get us all to go back to our policies and include specific details about what to do in the event of someone falling foul of the drink drive law? Not talking about fleet drivers, but specifically in this case where the driving is carried out on private land with no public access.
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Posted By SNS
I will ask a mate in traffic and get a reply in a couple of days.
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Posted By martinw
I am sorry for my ignorance, but does it transfer more easily in other areas? I mean, is there more obvious guidance for employers of train or tube drivers or airline pilots, none of whom if they were done for drink driving in a car would then be conveying people on a public road, or is the disciplinary policy/bringing company into disrepute line followed?
I really hope that this turns out to be a silly question!
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