An ongoing hot topic in the industry is the continued requirement for operators to ensure their drivers’ fitness to undertake their role as a professional driver. By Heather Lunney, Backhouse Jones Solicitors

Who is responsible for ensuring a driver is fit to drive and who must be notified?

Whilst an operator has to ensure the driver holds the relevant licence to drive, the primary duty for notification of any medical conditions lies with the driver.

All drivers (and applicants) have a legal duty to tell DVLA about any injury or illness that would affect their ability to drive safely. They should be advised by their GP if they have a medical condition which may impair their fitness to drive and if they are required to notify DVLA. Failure to do so by the driver is an offence. A driver must surrender their licence to DVLA if their GP tells them that they need to stop driving for three months or more because of the medical condition. If a driver cannot, or will not, exercise their own legal duty to notify the DVLA, then the GP does have the ability to notify DVLA themselves.

An operator is not strictly required to notify the Traffic Commissioner of any driver medical conditions under its Operator’s Licence, and it does not have a duty to notify the DVLA of any such condition – this duty lies with the driver.

What is the effect of section 88 of the RTA?

Section 88 can, in some circumstances, allow drivers to continue to drive without holding a current licence. This is usually in circumstances when a driver has applied to the DVLA to renew their licence but the licence expires whilst the application is being processed, or where an application is being considered following notification of a new, or changes to an existing, medical condition.

When DVLA has been notified of a medical condition which may affect a driver’s ability to hold the required licence the DVLA will make enquiries with the driver’s GP and other healthcare professionals involved. The individual may retain their legal entitlement to drive under section 88 provided they meet the required conditions.

What steps can an operator take to monitor a driver’s fitness to drive?

Under the Equality Act 2010, it is no longer lawful to ask questions about an applicant’s health before an offer of employment has been made. One exception is if it is necessary to establish whether an applicant will be able to carry out a function that is intrinsic to the work concerned.

However, to avoid potentially falling foul of the Equality Act 2010, it is commonplace and sensible for operators to make an offer of employment subject to a satisfactory medical assessment being carried out. This can be by way of a medical questionnaire, and medical assessment if necessary, depending on the information provided. Some operators go a step further and require all new recruits to undergo a medical assessment with their company doctor/occupational health provider.

Once they have commenced employment, they should be contractually required to notify the operator of any medical conditions which arise which may affect their ability to safely drive. It is also advisable that operators require drivers to complete an annual medical questionnaire to declare that there have been no changes to their health or any issues which may affect their fitness to drive. If a driver notifies an operator of a condition either on the questionnaire, or at any point during their employment, it is essential that this is investigated by the operator.

What can an operator do if they have concerns about a driver’s fitness to drive?

If an operator reasonably believes one of his drivers may not be fit to drive or has any concerns about sending them out in a vehicle, they should stand them down from duty and request that they undergo a relevant medical assessment. This can be by way of a report from the driver’s GP or a referral to occupational health. In the meantime, the operator might also suggest that they visit their GP to speak to them about the concerns. If the GP signs them off as unfit to work they would be entitled to SSP, or contractual sick pay. If, however, the driver insists they are ok to drive but the operator is not satisfied pending investigation, then it is advisable to place the driver on suspension. Any suspension would have to be on full pay. An alternative to suspension may be offering the driver other work, for example, yard duties. It would be important to remember though, that any alternative work should also be suitable in light of the potential medical condition.

What are the options if a driver is deemed unfit to drive and/or has his licence revoked?

If a driver loses their driving entitlement on medical grounds, the operator can consider termination on grounds of capability. They would have to ensure that they follow a fair process, part of which would be to investigate whether the driver is capable of doing any alternative work which does not require a licence and whether this is something the operator could accommodate.

The operator would need to ensure that medical opinion was obtained to confirm the driver’s fitness for any alternative duties. If, after investigation, there was no alternative to dismissal, they would confirm the driver as dismissed. They would be entitled to their notice period (paid at normal pay), usually paid in lieu.

It is highly recommended that operators and drivers work together in ensuring that drivers undertake all possible assessments in an attempt to uncover health troubles which may, otherwise, be disguised until something more sinister occurs.

 

Heather Lunney

Heather advises on all aspects of Employment Law for the transport and logistics sector. She has experience advising on employment law issues including defending tribunal claims, day-to-day disciplinary, dismissal and grievance issues, discrimination, redundancy/re-organisations, HR issues that arise on the sale of a business or when outsourcing (TUPE) as well as strategicadvice on settlement negotiations and exit agreements. Heather also carries out contract audits/health checks and drafts service agreements, employment contracts and policies/handbooks.