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None for the road

22nd December 2005
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Which of the following most accurately describes the problem?

Keep an eye out at

:hristmas — if one

Df your drivers starts /yak still tipsy from :he night before, ou could face Drosecution. Transport

awyers Tim Ridyard ]nd Joanna Cowie -eport on managing

:he seasonal spirit.

Ai. Christmas, minds are focused on the dangers of drinking and driving. But there are other times, such as the days fter bank holidays, when drivers and other mployees might be intoxicated even though ley may not show any obvious outward signs. How should an employer tackle this? What if rivers smell of alcohol before they start their aily shift? What about drink or drug testing? If employees are inebriated to the extent that ley cannot carry out their duties then dismissal lay be entirely reasonable, as long as the mrect statutory dismissal procedure takes lace. The wrong procedure could make an therwise fair dismissal unfair.

Where drivers are clearly unfit to drive, it is ;asonable for an employer to refuse to allow tern to work.The difficulty is how to tackle the -oblem of hidden drink or drug misuse.There ay be no (or only low-level) signs of possible -ug/drink disability. An employer may face an :pensive unfair dismissal claim if things are A. properly handled.

Requiring an employee to take a drink or .ugs test out of the blue, with no reference to is in his or her employment contract, is iwise.The employee may regard it as breachg the unwritten, but implied term in their intract of employment, namely trust and ,nfidence. This could lead to a constructive dismissal claim in which the employee says that, although the employer had not actually dismissed them, it had made their position impossible.

Reasonable suspicion

Some businesses require drink and drugs tests to be taken before employment begins. If any drink or drug testing does take place, it should be referred to in the contract of employment so every member of staff knows where they stand at the outset. Even then, an employment tribunal would want to see that testing had taken place only where there was some kind of reasonable suspicion of drug or alcohol misuse on the part of the employee and that this was likely to have an impact on safety issues. Of course, there will be little difficulty in establishing safety concerns where drivers are involved.

Employers should make it quite clear where they stand with regard to use of alcohol or drugs on the premises. Businesses of five or more employees will have a written health and safety policy. This should set out a specific policy on alcohol and drugs.

If drivers drive under the influence of alcohol or drugs (whether they are prosecuted or not), an employer will have little difficulty in taking robust disciplinary action. Drivers prosecuted for drink-driving offences are almost certain to he disqualified from driving for a minimum period of 12 months and only a few offences related to drink-driving carry discretionary driving bans.

Drivers disqualified from driving will be unable to fulfil their contracts of employment, and this is likely to be clear grounds for immediate dismissalbut again it is advisable to have a clause in your contract stating that a driving disqualification is grounds for summary dismissal .The correct dismissal procedure must still be carried out in the proper way.

It is also advisable to include in the employment contract a clause requiring a driver to hold a driving licence; otherwise an employer might he expected to consider alternative employment within the same business for a driver who loses his or her licence.

Businesses and drivers should be aware that the revised drivers' disciplinary rules issued earlier this year suggest that drivers may not simply get back their vocational driving entitlements when a court ban has expired:The Traffic Commissioners may delay this for longer depending on the circumstances of the offence.

An employer who has any doubt with regard to the fitness of a driver to go out on the public highway in a 44-tonne killing machine should err on the side of caution. If the driver isn't constrained from driving, and it transpires that the operator was aware, or should have been aware, that the driver shouldn't have been driving, the operator is also liable to prosecution. • CONTACTS Designated driver campaign WWw. porlman .group.org .uk Department for Transport www.lhinkroadsafety.gov.uk


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