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Licence to Kill - Licence, Insurance and Reporting

What do drivers (whether in the workplace as vocational drivers or private drivers) have in common with James Bond? Most will not be driving around in an Aston Martin, and none we would hope would have any form of official licence to kill, but the minute we start driving on public roads we are in control of an item that has that very ability or at least to cause serious injury. Unlike perhaps being an MI6 agent where there may be immunity from prosecution, everyday drivers are certainly not.

A driving licence, however, is not a guarantee of any individual driver’s ability behind the wheel. A driving test is a snapshot of that person’s ability at the time of that test, and as an employer of drivers using your fleet or where you instruct your staff to use their vehicles in any work capacity (grey fleet) then it is right to establish that the driver possesses a driving licence (you will be surprised at how many people purport to when they do not, or where they do not hold the correct classification of driving licence) and it is right for an employer to ensure that that they have basic fitness to operate that vehicle.

Checking with an employee that they possess a licence should be part of your standard onboarding process. During the period of employment, periodic checks of that driving licence could be obtained with the employee’s consent. There are organisations that would, for a fee, provide a driving licence check system. This is commonly used by those working as HGV drivers in accordance with an operator’s licence, but less so for those running standard fleets. The DVSA licence check is, however, easily accessible by those providing the authorisation and a driver handbook and employee contract setting out those reasonable expectations to examine a driving licence and for it to be periodically checked is entirely reasonable. Why would an employee refuse to provide that information if their role requires driving tasks?

There are, however, significant delays in the criminal justice system at present meaning from the date of an alleged offence to the eventual outcome can be many weeks or months. Conceivably, an employee could be awaiting the outcome of a prosecution/police investigation and not have any conviction or fixed penalty to report to their employer. The driver handbook requests that an employee update the fleet manager of any pending convictions, fixed penalties as well as an outcome could be sought but of course, we remain of the principle that somebody should be treated as innocent until proven guilty.

Inevitably there will be interaction with your business’s insurers, and it is advisable to liaise with those underwriting your vehicles and your driving operations to ensure that your policies meet the expectations of your insurers, and have steps in place to mitigate risk and enhance open communication between your employees and managers when it comes to the reporting of incidents. Of course, employees are anyone engaged in driving for your business whether they be the owner/operator/directors or otherwise, they should adhere to the same policies.

The link to the DVLA’s driving licence checking system is here and enables you to view or share driving licence information, subject to obtaining personal permission from the individuals concerned. If you use this system for a member of your employed team or to check the record of anyone else connected with the business, then you should have a clear set-out permission form stating how you are going to obtain that information and how it is going to be used or stored.

The law applies to both company and grey fleet vehicles. For clarification, a grey fleet vehicle is owned and driven by a worker for business purposes. Vehicles used under cash allowance schemes are grey fleet too.

Insurance companies often insure a person’s private vehicle to include social and domestic use or extend to business use. Over recent years there has been the addition of commuting to work and under a health and safety policy commuting is not generally classified as driving for work, but there is the exception where someone’s journey starts from their home, and they are driving to a work location that is not their normal place of work.

Undertaking a risk assessment to assess the journey type, the driver or rider as well as the vehicle is advised.

Having in your driver handbook and employee contracts reference to the driver’s competence and capabilities is essential. This will help you prepare your risk assessment, the way you choose workers and the way you allocate work. Some of the aspects referred to by the Health and Safety Executive are as follows:-

  1. Experience, attitude, maturity, driving record, physical fitness and language barriers.
  2. Physical capabilities, ability, age, sensory impairment, mental health and general health.
  3. Vulnerable workers for example young workers.
  4. The skill and expertise required to do the job safely and making sure they are met.
  5. Any driving or riding offences.
  6. Ensuring safe behaviours on the road.
  7. Ensuring licences, insurance and MOTs are legal and up-to-date.

 

Making your driver or rider aware of your company policy which is centred on work related safety should include:-

  1. Written instructions and guidance.
  2. Driver’s handbooks.
  3. Training sessions.
  4. Induction
  5. Group meeting including talks.

It goes without saying that there should be adequate training for those drivers and riders using any vehicle provided.

It is fair to assess if any convictions, fixed penalties or incidents have occurred whilst driving in that vehicle. An assessment on whether this poses any risk and if that risk can be managed or if they have accrued types of convictions or incidents that would render any insurance policy invalid or create such a risk that you would have to take contractual action against them (either discipline and/or cease their employment). An example may be where you receive notification that they received penalty points for using a hands-free mobile phone and whether this has shown that they pose a risk to themselves, their colleagues or other road users. Previous articles have dealt with mobile phones and the importance of having a clear policy.

These are aspects of having necessary control, and whilst you as an employer cannot be watching every driver on the road (leaving aside in-cab technology for instance), you need to set standards of expectation of your drivers and encourage notification of incidents and/or allegations or convictions so that these can be managed with care.

In short, you are highlighting the potential consequence of poor driving and doing what you can to manage and reduce the risks and consequences to your staff and other people. Ultimately, it is a benefit to your business to keep everyone connected with it safe, to manage your reputation, your business reputation, to reduce incidents which inevitably have an impact on insurance issues and also to reduce downtime that can occur when there has been an incident that has to be either investigated, or has caused damage to work vehicles.

Ensuring a driver has a valid driving licence as well as the necessary insurance cover is essential and if it is to be provided by them then copies should be retained and checked, or if by you as an organisation, having adequate insurance cover is a must. Frequent/regular licence checks could be undertaken in order to establish if there have been any updates on their driving licence, but you would also consider carrying out random checks on those that work for you in a driving capacity.

It is not exclusive to employees but all of those who lead in the business to ensure that everybody is driving as safely as they can.

Of course, incidents happen, and penalty points take place ranging from minor speeding offences to the most serious of motoring incidents. Therefore, as a company, you would consider the nature of those motoring offences and the outcome. And consider what, if any, action is needed to prevent repeat occurrences. Clearly, keeping your organisation’s insurance informed is essential to ensure that insurance is not invalidated and to show what, as a business, you have done to reduce and mitigate repetition.

Early intervention is key and requesting that incidents be notified to a fleet manager, line manager, or other responsible person in the business as soon as it has occurred is important. Notifying the insurance company of any incident that has occurred on the road should take place at the soonest opportunity.

Senior Solicitor and Higher Courts Advocate Jane Anderson clarifies that under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations), employers and those responsible for work premises must report and maintain records of all work-related fatalities and certain types of work-related injuries. However, incidents involving vehicles on public roads, including road traffic accidents where a driver sustains serious injuries on a motorway, typically do not fall under RIDDOR reporting requirements. This distinction stems from the purpose of RIDDOR reporting, which is primarily aimed at enabling the relevant enforcing authorities to enforce health and safety legislation. In contrast, enforcement of road traffic legislation falls under the jurisdiction of the police. Therefore, road traffic accidents are generally not subject to RIDDOR reporting. Nevertheless, a diligent employer should ensure that an effective reporting and recording procedure is in place should an incident on a road involving a fleet vehicle arise.

Therefore, if there is an incident on the road using one of the vehicles then your organisation’s policy and procedure should clearly set out the line of communication, stating how that incident is going to be managed and reporting to your insurers takes place diligently and expeditiously. Often insurance companies will state that reports should take place within a reasonable period of time, but the definition of reasonable will be a matter between your organisation and your insurance company, and if in doubt ensure that that is reported at the soonest opportunity.

As criminal motoring lawyers, we represent individuals who, through honest misunderstanding, find themselves being prosecuted for failing to stop or to report an accident or to give information following a road traffic collision. There is a common misconception that you can just be involved in a collision, drive home and eventually tell your insurance company if something comes to light, but an incident can be reported by another driver or a witness to an incident which can lead to police involvement and allegations that a driver has failed to stop and exchange details at the scene. If in doubt, ensure that a report is made and as an employer have a driving policy to state that any road incident should be reported is the best advice. If there is a suspicion that damage and/or injury has taken place then there are stringent laws that apply to ensure that details are exchanged, sharing of insurance information takes place and that parties to that incident have an opportunity to remedy any losses as a result.

Failing to follow that law can easily result in a conviction with a penalty which will directly impact your insurance, preventing cover or impacting substantially on your premium. Our advice is if in doubt, then ensure that any incident is reported and obtain a crime reference number, even if the other driver involved in the incident states that there is no need for any form of exchange. If that person returns home with your registration number and states that you failed to exchange details, then it would be up to you to explain why you yourself did not report it.

In an employment position, notifying an employer as a driver is essential to prevent any misunderstanding so that the employer can review the incident and what steps could be taken to minimise risk going forward.

Section 170 of the Road Traffic Act of 1988 places a duty on a driver to stop, report an accident and give information.  The Act can be found here.

In short, reporting an incident is a must. This does not imply guilt for many criminal motoring offences or culpability/admission of liability under the civil context, it is simply ensuring that you comply with your obligations and any driver handbook should reflect the law above accordingly.

In accordance with the vocational licence for lorry drivers, they must hold levels of repute and as a business, you would consider the nature and type of driving incident that has occurred and whether there are training or risk management needs. An employer is not meant to be a judge and jury, however, it is perfectly reasonable to have regard to the driver’s behaviours, especially when carrying out driving tasks for your business and to have due regard to the level of infringements. This is something that would be carefully placed into driver handbooks and employee contracts and clearly, the input of employment lawyers for that careful bespoke drafting and subsequent handling of any investigative or disciplinary process should be considered for your business.

Mike Hayward Jane Anderson

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