- Driving at work can throw up tricky legal questions for both employers and employees. This section contains some of the most common employment law- related questions employers and employees have in relation to driving for work. If you need help with a specific query and you can’t find the answer here, we recommend you seek advice from an employment law specialist.
The starting point for all of these situations is that an employee has a contract with their employer to turn up for work, punctually and in a fit state to carry out the work that they are expected to do.
An employer (or agent of that employer - a manager) has a duty to ensure that the work, however it is carried out, does not endanger employees and those who could be affected by the actions of an employee (including the public and other road users).
A. Legislation doesn’t state how often you need to check that your employees are competent to drive, however you need to ensure that they are. At least you need to assess their competence for the types of vehicle they will drive at work, at their induction, after an incident or a complaint, during their return to work after a period of absence or before they return to driving duties. You should also check your employees’ competence at regular intervals. Ideally have this included in any policy relating to driving and from these assessments you need to decide whether your employee needs any type of additional training.
A: You will need to consider what evidence you have of the driver’s unfitness to drive. Symptoms to look out for are an inability to follow conversations, slurred speech, glazed eyes and reduced reaction speeds. Ask the driver questions about how much they had to drink and when.
The concentration of alcohol in the body depends on a range of factors, including weight, size, whether the person has eaten and how much alcohol has been drunk. It takes a healthy liver around 1 hour to process 1 unit of alcohol (i.e. a half pint of beer, a 25ml measure of spirits or a small glass of wine). Coffee and fresh air will do nothing to speed up recovery time.
If you suspect that the driver is over the legal limit, you should not allow them to drive (later, you may want to consider what additional support you can give to the individual or consider taking disciplinary action over this). . Check whether your organisation has an Alcohol and Drugs policy which may give you more guidance.
If you are unsure about whether the driver is over the limit, it would be useful for you to be able to request that they take a breathalyser test. You may therefore want to consider putting this into your contracts and policies if you do not already have the right to request this.
You may be able to redeploy the driver to other duties within the workplace provided this can be done safely. It may also be necessary to remove the individual from the workplace and send them home. Remember if the driver is unfit to drive a company vehicle, they will also be unfit to drive themselves home, you may wish to help them find an alternative means of getting home safely or take steps to prevent them driving a vehicle of any sort. You may need to report their continued driving to the Police.
Ultimately you will have to make the decision to allow your staff member to drive or not. You must ensure the safe operation of your business, this includes protecting others who could be affected by work activities (other workers, road users or members of the public). If you think a driver is unfit due to a health condition, use of substances or any other reason and you have evidence to this effect, then your only course of action is to stop them. You will then have to find an alternative way to get the job done, arrange to discuss the decision with the employee and determine a way forward.
A. If they are temporarily incapacitated the employee should provide a fit for work note from their GP. Once this has been submitted normal sickness absence and sick pay procedure can then be followed. It is good practice to consider a return to work interview with the member of staff (make sure this is part of your attendance policy) to ascertain if they are fit to return to driving and if some temporary adjustments to the work routine may help them return more quickly. You would also want to enquire about, has the work contributed to the absence in any way?
A: If the driver has not yet accepted the job offer, you can withdraw the job offer as the employment contract has not yet been created.
However, if you want to withdraw the offer after it has been accepted, you would have to dismiss them and give them their required notice. Prior to this, it is advisable that you obtain a medical opinion on whether or not they are fit to drive before making your own decision on this. This can be done by writing to the driver’s GP or referring them to an Occupational Health specialist, with their consent, to establish whether they would be able to fulfil various parts of the role with their current health problems.
You will need to be particularly careful if their bad back could amount to a disability as any dismissal could result in a claim for disability discrimination. If you are unsure whether this is the case, you should seek clarification from the employee and from a medical professional.
A: It is a legal requirement that elderly drivers renew their licence within 3 years after their 70th birthday. You therefore could not let an elderly driver over that age continue to drive for you until this had been done as it is unlawful to drive without a valid licence.
However, if this is not the case, you will need to explore where your concerns stem from. If you have concerns over their eyesight, for example, you could request that they complete a simple eyesight test. The legal requirement is that a driver must be able to read a car number plate from 20.5m away in good daylight, with or without glasses/contact lenses. After such a check, you could advise the individual to have a formal eye sight test.
If on the other hand you have concerns over their concentration levels or judgment, you could meet with them to discuss these concerns and your basis for them. If appropriate, you could seek a medical report from their GP or an Occupational Health specialist (with the employee’s permission) to establish whether they are fit for work. Issues to consider might include – the length of the working day; how much and what sort of driving does the individual do out with work; what sort of vehicles they are driving out of work; are their duties that may be having an impact on the individual for example heavy lifting on deliveries as part of the job . You may wish to consider what adjustments could be made to their work patterns to help them remain at work.
A: In order to legally dismiss an employee with more than two years’ service, you will need to ensure that you have fair grounds to do so. There are five potentially fair reasons for dismissal: conduct, capability, redundancy, statutory restriction and “some other substantial reason”. The most important for these purposes is statutory restriction. If somebody is employed to work as a driver and they lose their licence, it would be unlawful for them to continue carrying out their duties as it is against the law to drive without a valid driving licence. If you can show that the reason for the dismissal was this statutory restriction then it would be a potentially fair dismissal.
However, before dismissing a driver who loses their licence it is wise to consider:
- Whether driving is a fundamental part of their role;
- How long the disqualification is for; and
- Whether there are any options for them to carry out a different role whilst they are disqualified.
A failure to give due consideration to these points could result in a legally unfair dismissal.
A: Regular staff reporting and licence checks can help establish if a driver has points on their licence or is in danger of disqualification, howsoever caused. As an employer you would want to know this and may need to take steps to support the driver to not get more points (driving courses, restriction in duties, redeployment etc). Regarding points gained during work driving, in general terms, it is likely to be unlawful to dismiss an employee for incurring points on their licence unless you have clear rules in place informing employees that this is something that they could be dismissed for. If, however, the accumulation of points has led to a revocation of their licence it may be lawful to dismiss an employee on the grounds of statutory restriction. As with any other disciplinary issue, any formal action taken will depend on the severity of the employee’s actions and any mitigating circumstances. You may want to consider whether you include incurring points on a licence as an example of general misconduct or gross misconduct within your disciplinary policy.
You will also need to ensure that other policy or practice within the company has not encouraged the individual to get points, for example setting unrealistic deadlines for drivers in effect forcing them to speed.
A: Drivers of road vehicles must not be under the influence of alcohol or drugs whilst driving and you must do what you can in order to avoid this from happening.
It is commonplace in the transport industry and industries where workers operate heavy machinery to have a policy in place which requires employees to submit to random alcohol/drugs testing. Such policies usually stipulate that a failure to pass a drugs test could be considered gross misconduct. You would need to have very clear company policies on this issue before undertaking such actions. If bringing in such policies (especially outside the transport industry), you should engage with staff and Trade Unions (if present) on the issue.
A: Generally speaking, a recruitment policy that requires a minimum number of years’ experience, driving or otherwise, could amount to age discrimination. An alternative policy which is less likely to be open to challenge could be to only advertise for drivers with a clean licence or for people who have a Pass Plus certificate and can demonstrate experience in all the required elements of the job.
A: Although there is no automatic legal right for you to be able to reclaim this money, you could have a contractual right if there is an express term within your employee’s contract permitting this. If this is a common problem, you may wish to consider introducing such a clause into your new and existing contracts.
However, you should be aware that if you introduce it into pre-existing contracts this would be a change to terms and conditions of employment. This means you would need consent to introduce the clause and this may not be a popular change with drivers.
A: The law governing drivers’ hours of work and rest periods depend on the weight of the vehicle, the country you’re driving in and what you’re using the vehicle for.
Currently, EU rules apply if the maximum weight of the vehicle is more than 3.5 tonnes and the drivers are driving in the EU (including the UK), a European Economic Area country or Switzerland. UK domestic rules on driving apply where the maximum permissible weight of the vehicle is under 3.5 tonnes or they are exempt from the EU rules for one of the reasons outlined here: www.gov.uk/drivers-hours
As an employer of drivers, it is advised that you familiarise yourself with these rules and make sure you know which set apply to your drivers to make sure your practices are legally compliant.
EU rules are that employees must not drive for more than:
- 9 hours a day, although this can be extended to 10 hours twice a week;
- 56 hours in a week; or
- 90 hours in any 2 consecutive weeks.
Also under EU rules, drivers must take:
- At least 11 hours rest every day, although this can be reduced to 9 hours rest 3 times between any 2 weekly rest periods;
- An unbroken rest period of 45 hours every week, which can be reduced to 24 hours every other week;
- A break or breaks totalling at least 45 minutes after no more than 4.5 hours driving; and
- Weekly rest after 6 consecutive 24 hour periods of working, starting from the end of the last weekly rest period taken.
The rules in the UK are that drivers:
- Cannot drive for more than 10 hours a day on a public road;
- Must not be on duty for more than 11 hours in any working day, although this limit does not apply to working days when they are not driving;
- Must take a break of at least 30 minutes after 5.5 hours of driving or 45 minutes in breaks within any period of 8.5 hours and a break of a least 30 minutes at the end of this period;
- Cannot work more than 16 hours between start and finish times, including non-driving work;
- Must take at rest of at least 10 hours before their first driving duty and immediately after the last duty in a working week and between 2 working days; and
- Every 2 weeks must take at least one period of 24 hours off duty.
Drivers should record their hours on a weekly record sheet and it is partly your responsibility as their employer to ensure that this is done. You should also make sure that their schedules are organised so that they are able to take the appropriate daily and weekly breaks. Schedules should also be realistic so that they are able to complete jobs within a reasonable time.
Where schedules have been properly organised to comply with the rules but you suspect that drivers are not complying, you could look to address this with them informally to discuss why this might be the case. If the issue persists, this could lead to a disciplinary process being followed as the rules are in place to ensure not only the driver’s safety but the safety of other road users.
A: It is illegal for drivers to hold and use their phone whilst driving and the penalties for doing so increased in March 2017 to 6 points and a £200 fine. You should therefore do what you can to ensure that your drivers are not using their mobiles whilst driving.
One way would be to provide hands-free devices to your drivers, although this is not a legal requirement. However, be aware that, even when using a hands-free device, a person’s reaction times will be slower. If this affects a driver’s ability to drive safely, they could still be prosecuted by the police. You can therefore also play your part by making sure that you keep calls to drivers to a minimum when you know they are on the road. Consider instructing drivers to only check phones when they stop in a safe place and are in a position to respond.
A: Although there is no automatic legal right for you to do this, you could have a contractual right if there is an express term within your employee’s contract or policy permitting this. If this is a common problem, you may wish to consider introducing it into your new and existing contracts.
Generally, searches should:
- Respect privacy as far as possible;
- Be done by a member of the same sex; and
- Be done with a witness present.
A: The purpose of rest breaks and periods is to ensure the health and safety of drivers and to make sure they are rested enough for the periods in which they are carrying out their duties. It is essentially up to the drivers how they choose to spend this time, including whether and how long they asleep.
If you are concerned that this could be as a result of a medical condition which may affect their driving, you should explore this further with the employee and may wish to seek medical advice.
If you have any reason to think that this behavior could be impacting on their ability to drive safely then you should take action, discuss the issue and your concerns with the employee, obtain a medical opinion (with the employees consent) and possibly temporally redeploying until a solution is reached.
A: The information contained in the D4 form is confidential medical information. As with any other information of this nature, you need the driver’s consent to obtain it. You could therefore ask them to show you the form but you could not force a driver to show you if they did not want to.
However, if you have concerns about the employee’s entitlement to drive, you can contact the DVLA directly to request information about their driving licence. You can request information on:
- The licence validity dates;
- The categories of vehicle that the employee is entitled to drive;
- Whether or not there are any current endorsements on the licence; and
- Whether or not the employee is disqualified from driving.
A: You can only request a report from a GP or Occupational Health provider with the driver’s consent. This is normally done with the intention of ensuring the employee is fit to work. When making a referral, it is recommended that you request the answers to specific questions in relation to the employee’s health and fitness to work as a driver. Be aware that, even if an employee consents to a referral to an Occupational Health specialist, they do not have to consent to you seeing any medical report.
If you are considering an employee’s fitness to drive and they do not consent to a referral, you may have to make a decision about fitness to work based on evidence you do have access to. Making a decision in the absence of medical advice is generally not in the employee’s best interest and you can explain that to the driver in question.
A: If you require drivers to have a particular standard of driving you should make this clear before they are hired. If, however, your concerns about their fitness to drive arise during their employment, you will need to evaluate what evidence you have of the employee’s unfitness to drive before considering suspension. If you suspect an employee is unfit to work, you should discuss this with them in the first instance and encourage them to seek medical treatment. It may be that their GP shares your concerns and signs the employee off as unfit to work or fit with adjustments. If, however, the employee claims to be fit to drive and you have evidence that would suggest otherwise, you can consider suspending them on full pay until further investigations are carried out. Suspension should never be a knee-jerk reaction and should always be for as short a period as possible.
A: Generally, there is no legal obligation or implied contractual term requiring an employee to disclose information about their co-workers’ health, even where this may mean they are not fit to drive. It is therefore unlikely that you would be able to discipline an employee for failing to disclose this.
However, where an employee has colluded with a co-worker by actively lying when questioned about something within their knowledge, there may be grounds to take disciplinary action against that employee.
A. You have a duty of care to your employees’ safety and health, and you need to take all reasonable steps to ensure their safety and health is guaranteed while carrying out task for your organisation. For this reason you need to make regular checks to ensure their vehicles are safe to drive, that they are maintained and inspected regularly. You should include on your policies and procedures how often you will be requesting a copy of their inspections.
It is common place in the transport industry and industries where workers operate heavy machinery to have in place a policy which requires employees to submit to random alcohol/drugs testing. Policies usually state that those who fail a drugs test could then be disciplined in line with the disciplinary policy for gross misconduct.
You do not have to take a drugs test. However, if your employer’s rules state that you do and you refuse, they may draw their own conclusions from your refusal and you could face disciplinary action.
A: Generally speaking it is unlawful for your employer to deduct wages for you, except in some circumstances such as accidental overpayment of wages.
There is no general legal right for your employer to recover the costs incurred as a result of an employee having a car accident. However, there may be a term within your contract or policy allowing your employer to do this. Where there is a contractual right for an employer to recover this money, it is not unlawful for them to deduct from your wages.
A: If you feel that you are still over the limit then you should tell your employer. Driving over the limit is unlawful and the fallout from driving over the limit will be far worse than being honest with your employer. As a general rule, you should avoid drinking the night before if you know you will be driving in the morning.
A: Sometimes employees are unable to fulfil their roles through sickness and this is unavoidable. If you know that you have an operation coming up, you should inform your employer as soon as possible that you will not be fit to drive so that they can arrange suitable cover. You should also follow your company’s sickness absence procedure and make sure that you submit a sick note from your doctor.
It may be that your employer is able to find you alternative work in the business whilst you recover and, if this is something you are able to do, you can explore this with your employer. However, generally speaking temporary incapacity should not impact upon your job.
A: Being fit to drive is important as it not only ensures your own safety on the road but the safety of other road users. As with a health condition that could affect your driving, if you think an aspect of your age such as eyesight of concentration is affecting your driving, you should let your employer know as soon as possible. It may be that they then request your consent to contact your doctor or refer you to Occupational Health and it is advised that you engaged with this fully if you have your own concerns.
You should also be aware that if you are over the age of 70, you will need to renew your licence within 3 years of your 70th birthday or you will be driving unlawfully and could be prosecuted.