Drink Driving and Drug Driving – a legal update for employers

This month’s legal update on Drink and Drug Impairment, for those who manage drivers, comes to us from Mike Hayward of Woodfines Solicitors.

Drink Driving and Drug Driving kills

Driving having consumed excess alcohol or when impaired through taking illicit drugs can be catastrophic. A loss of driving licence if caught is certain, but a loss of life (yours or someone else’s) is a real possibility if involved in a collision where impairment is a factor. The statistics speak for themselves, and despite regular publicity setting out the risks and consequences, drink and drug driving remains common place.

In 2021, an estimated 6,740 people were killed or injured when at least one driver was over the drink-drive limit.

Alcohol, drugs, prescribed medication…

The consequences of the ‘one for the road’ or ‘hair of the dog’ cannot be underestimated when the foolish decision to drive is made after consuming any liquid or substance that will impair a person’s driving ability. Referred to as ‘liquid courage’ in the Cambridge Dictionary, alcohol has long been known to give some extra courage and to lower inhibitions. In fact, I have myself been told that I play pub games like darts and pool better after I’ve loosened up after a couple of pints, BUT being in charge of a pool cue is a far cry from getting behind the wheel of that deadliest of weapons …a motor vehicle. This is illegal on the public roads as well as posing a clear danger to road users.

In a similar way, you would not as fleet managers tolerate any of your drivers to carry out driving tasks or other safety critical activities when under the influence of alcohol, illegal drugs or even prescribed medicine.

As motoring lawyers, we  commonly hear from drivers who felt more confident to drive after having a few drinks or a bit of cannabis – or that they had left it a few hours before driving, because alcohol will have left their system by then, or that they had eaten a big meal to ‘soak it up’. However, everyone’s metabolism is different and no one can tell when alcohol starts to leave the system. Where some illicit drugs are concerned, they can also stay in your system for many hours and even days.

What’s your company policy on drink driving and drug driving?

As fleet managers, you won’t be able to monitor what your fleet drivers/operatives are consuming 24/7, but you can set your company’s Driving for Work Policy and your expectations. The overriding message being that drinking and driving or driving while impaired through drugs is not tolerated at any time, and not when carrying out work under your control. Those expectations should extend to contractors working for your business. Driving for work would be a safety critical activity and your driving policies should reflect the importance of your zero-tolerance approach.

Getting the message across

Key is to have the anti-drink/drug drive message in your driving for work policies and procedures. As for any process you should ask yourself:

• Do you have a drink/drug drive policy, and if so, is it up to date?
• What specifically works for your company?
• Is your safe driving policy enforced or how will you enforce it?
• What devices/systems should be installed?
• Is your employee/driver handbook up to date?
• Do you need to introduce systems to reduce the occurrence of drink/drug driving to eradicate or at least mitigate the risk?

Every business is different and therefore you should examine the processes that work for your specific needs. However, it’s important to remember as fleet managers and business leaders how you have a general duty under the Health and Safety at Work Act to ensure, so far as reasonably practicable, the health, safety and welfare of your employees. Clearly, seeking to prevent the obvious risk of impaired illegal driving is needed. It is correct to state that employees must also take reasonable care of themselves and anyone who could be affected by their work. This would include not placing themselves or others at risk of their illegal driving or from being under the influence when operating vehicles, machinery or plant (this list is not exhaustive).

Without question, drink or drug impairment will impact employee safety so ensuring good driver behaviour and setting your expectations is key.

Fitness to drive – testing your drivers

As business/fleet managers you will consider implementing an impairment screening and testing programme. This demonstrates your commitment to safer working practices for your staff and all other road users. A previous article by Driving for Better Business (DFBB) on testing processes can be found here: Drug Screening – is it partof your Driving for Work Policy?

As fleet managers, your policy will reflect the need to ensure there is no acceptable level of drug or alcohol induced impairment when carrying out work activities.  You will also want to have a policy in place to ensure employees notify you of matters (e.g. criminal convictions) that may impact on their ability to carry out their duties.

What should your drivers disclose to you?

In transport law, a vocational HGV driver would need to disclose any convictions that could lead to the loss of their repute to the Traffic Commissioner. You may also wish to adopt a driving licence check process to ensure licences are regularly reviewed.  Again, it is for business managers and fleet managers to assess the risks posed and to ensure the policies are bespoke to your business.

The Criminal Law on Drink and Drug Driving

Your policy around drink and drug driving will undoubtedly include a level of expectation that there is zero tolerance in the workplace. It is worth setting out what the criminal law states:

This is a summary and not an exhaustive list of all offences. More details on the law is set out in the Crown Prosecution Guidance here:  Crown Prosecution Service – drink driving and drug driving

• The Road Traffic Act 1988 (RTA section 5) makes it a criminal offence to drive or be in charge after consuming so much alcohol that the proportion of it in their breath, blood or urine exceeds the prescribed limit.

• The legal alcohol limit in England, Wales and Northern Ireland for driving is 80 milligrams of alcohol per 100 millilitres of blood or 35 micrograms of alcohol per 100 millilitres of breath.

• The offence at section 5A RTA 1988 is driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug. A ‘controlled drug’ is stated at to have the meaning given by section 2 Misuse of Drugs Act 1971

• Section 4 RTA 1988 creates an offence when a person drives or attempts to drive a motor vehicle on a road or other public place while unfit through drink or drugs. Similarly, section 4(2) RTA 1988 makes it an offence if the person is in charge of a motor vehicle, when under the influence of drink or drugs.

• In essence, where the prescribed legal limit is exceeded then this makes the office a strict liability and not requiring evidence of impairment. Otherwise, the police will gather evidence of impairment to support the investigation of section 4 RTA 1988.

• It is also an offence to fail to provide a specimen for analysis by the police.

These are matters where disqualification from driving will follow, with financial penalties and the stigma attached to having a conversation relating to that noted on your record.

Driving licences take a long time to obtain but they can be quickly lost, for a minimum for 12 months for a low-level reading.

Leaving aside these offences, anyone involved in a fatal or serious injury driving incident when under the influence of alcohol or drugs is likely to face the graver outcome of a custodial sentence.

The police will seek to enforce breaches on the public roads, but as employers and fleet managers you should manage risk where you are able, and by having policies in place for monitoring, testing and dealing with the risks posed by drink and drug driving, you will be playing an essential part in managing your employee wellbeing and safety.

It should also be noted that a failure to take action, where you knowingly allow drug or alcohol related activities at work, would be illegal under the Health and Safety at Work Act.

Supporting your drivers – alcohol and drug addiction

There are many available helplines for those worried about addictions, and as a fleet manager you may seek to include details of how your colleagues can access that help in the employee handbook. Always remember that there may be underlying reasons for someone to be drinking alcohol excessively, or they may have underlying medical issues. It would be good practice to seek to understand the reasons via your HR teams. Seeking the advice from an employment lawyer/consultant on what you can add into your general policy would be advisable.

Much of the above concentrates on drivers, or others undertaking safety critical roles – but, as a manager of your business, you will want to ensure that any role is being undertaken to the employee’s best ability, without them being under the influence of illegal substances, or in a poor state due to over-indulging in alcohol.

After all, it is not just airline pilots who are regularly screened, but also air traffic controllers. You could liken that to our driver,s and those setting their delivery routes. Safety should be at the heart of any business, and drink or drug driving flies in the face of being able to carry out any task safely

Mike Hayward of Woodfines Solicitors advises businesses and individuals on a range of motoring and health and safety aspects.