In March this year the Government introduced a new offence of “drug-driving”. As with alcohol, under the new provisions if a driver is found to have more than the specified level of a controlled substance in their body then they are guilty of an offence. If you have delivery drivers regularly on the road their activity may be scrutinised, but be aware of other staff who drive on company business on a less regular basis – eg BDMs or other managers visiting outlets etc.
Which drugs are covered?
The legislation sets limits for 8 illegal and 8 legal drugs. The level for illegal drugs are set to a very low zero tolerance level. The levels for prescribed medicines are set at a high level so that only those taking more than the usually prescribed dose will be guilty of an offence.
The illegal drugs covered are those most commonly used and include Ketamin, LSD, Cocaine, Cannabis and Heroine.
The legal prescription drugs are:
- Temazepam
- Diazepam
- Flunitrazepam
- Morphine
- Lorazepam
- Clonazepam
- Oxaepam
- Methadone
The police have been issued with saliva kits for drug testing. Once a driver is arrested they will then be taken to the police station where a urine or blood test can be carried out.
Defence
Drivers will have a defence where a drug was lawfully prescribed by a GP or pharmacist and they have taken the drugs in accordance with their advice and the manufacturer’s instructions. It is advisable for those who take the specified prescription drugs to carry their prescription and the manufacturer’s instructions in their car in case they are stopped by police.
Penalties
A conviction for drug-driving will result in a mandatory driving ban for a minimum of 12 months. In addition a fine of up to £5,000 may be imposed and/or up to 6 months in prison.
A conviction for drug-driving will remain on a an individual’s licence for 11 years.
Considerations for Employers
It is important for employers to have a policy relating to drink driving and the implications that this has for the company and an individual’s employment. This policy should be reviewed to cover drug driving.
Employers have a duty under health and safety law to ensure the health and safety of all employees whilst at work, including driving whilst at work. Employers also have a duty to ensure that others are not put a risk by their employees work related activities, including driving. Employers need to carry out relevant risk assessments and ensure that those who drive for work are competent and safe to do so. The new drug drive provisions obviously have an impact on this.
Employers will need to ensure that staff are aware of the drug and alcohol driving laws and the company’s policy on this. Employees should be aware of the law on prescription medicine and the advisability of carrying their prescription with them. Any company policy should make clear the obligation to report any driving offence to the employer and the potential consequences for an individual’s employment should they lose their licence. If an employee is entitled to a company car then this policy should also specify the consequences of a driving ban.
Vicarious Liability and Corporate Manslaughter
There is a possibility that an employer could be liable for the acts of an employee whilst driving in the course of his employment. Such an action would be harder to defend where an employee was under the influence of drugs or alcohol. It is important that employers have the correct policies and staff training in place so that staff are aware of the law and in particular the provisions relating to prescribed medicines and the importance of carrying necessary documentation relating to these.
It is worth noting that the Sentencing Council has recently consulted on the introduction of an increase in fines for health and safety offences and corporate manslaughter. The Sentencing Council is concerned that the penalties given for corporate manslaughter and health and safety offences are often too low. The increase will particularly impact on large organisations (turnover of £50m or more). It intends to increase the sentence levels to ensure that the sentence is proportionate to the offence. It proposes that the fine should take into account the financial circumstances of the organisation and be based on its turnover. The draft guidelines propose that the starting point when fining a large organisation (turnover of £50m or more) found guilty of a health and safety offence where both the harm and culpability levels are high would be £4m (fine range of £2.6m – £10m). For corporate manslaughter the starting point for a large organisation is £7.5m and for a micro organisation (turnover up to £2m) it is £450,000. Definitive guidelines are expected towards the end of 2015.
