Thursday, 5 November 2015

Are your drivers fit for the road? . . .


Are your drivers fit for the road?

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Important questions regarding the recruitment and medical assessment of heavy vehicle drivers have been raised at the fatal accident inquiry (FAI) into last December’s Glasgow bin lorry incident, which adjourned to consider evidence in late August.

The ageing of the LGV driver population increases the likelihood of individuals becoming medically unfit to drive, and reduces the number of suitable applicants.

In the case of the 2014 Glasgow crash – in which six people were killed three days before Christmas – the inquiry heard that the driver of the bin lorry had allegedly experienced a previous blackout whilst driving for a bus company, and had suffered from health problems including fainting and dizziness as far back as the 1970s.

It was further alleged that the driver had failed to disclose aspects of this medical history to the Driver & Vehicle Licensing Agency (DVLA) and medical practitioners, as well as to Glasgow City Council during the recruitment process.

Furthermore, the inquiry heard that the driver successfully applied to DVLA for his LGV licence to be reinstated in April 2015, just months after the crash, before it was revoked again in June.

Questions were asked at the FAI about the screening processes operated by the DVLA, which are supposed to ensure that the holder of a Group 2 licence (LGV or PCV) is medically fit to drive large commercial or passenger-carrying vehicles.

Dr Gareth Parry, a senior medical adviser to the DVLA, admitted to the FAI that the current system was open to abuse. Asked if: “particularly in the context of Group 2 licences, the current system exposes applicants to a huge level of temptation?” Parry replied: “Yes, I think there is an opportunity for that.”

So, do employers themselves have any obligation to check that drivers, particularly of large vehicles, are fit to drive, beyond ensuring that the correct category of licence is held?

“Employers of LGV drivers have an obligation through the undertaking given on the grant of their operator’s licence, to ensure that the laws relating to the driving and operating of vehicles used under this licence are observed,” specialist transport solicitor Christabel Hallas told Transport Operator.

“This includes making checks of their drivers to ensure that those laws are not broken and that their drivers are fit to drive. The Medical Fitness section of the DVLA are the arbitrators as to whether or not the driver is fit to drive.

“Any driver aggrieved by the DVLA decision has a right of appeal to his local magistrates’ court, where he can produce medical evidence.”

So, it would appear that the law requires the employer to place the emphasis on document checks, rather than instituting medical checks of its own.

“Although the employer has no role in any decisions made by the DVLA, he does have an obligation to check the currency and status of his employees’ driving licences,” Ms Hallas continued.

“Records need to be kept of the checks, and employers may have had to change their systems following the recent abolition of the paper counterpart of the driving licence.

“The system for checking driving licences is one of the items checked by traffic examiners on a visit to the operating centre, and a low score could lead to regulatory action being taken against the employer.

“Allowing a driver to drive a commercial vehicle who had had his licence revoked for medical reasons would not only be a criminal offence, but would put into question the employer’s good repute and fitness to hold an operator’s licence,” she warned.

This does not, however, mean that the DVLA’s own system is robust enough to take all unfit drivers off the road.

The Glasgow FAI heard that that there is no mechanism within the DVLA’s licence application processing system to check the veracity of the applicant’s health declaration against their medical record, and that GPs were not obliged to notify the DVLA if they told a patient he or she were unfit to drive.

While the penalties for making a false declaration are relatively stringent (£1000 fine, or up to two years’ imprisonment) Dr Parry said he was not aware of any prosecutions for the offence in Scotland.

He also admitted that current written advice from the DVLA to general practitioners (GPs) on assessing a patient’s fitness to drive could be improved.

At an FAI into a separate incident earlier in August, it was heard that a bus driver, who had twice had his vocational licence reinstated following crashes caused when he blacked out while driving, was not prosecuted when he blacked out at the wheel for a third time, resulting in the death of a colleague.

This driver had not concealed his medical history. His first two blackouts were attributed to ‘a cardiovascular incident’ and high blood pressure respectively, while the third was related to dehydration.

So if an employer decides that the DVLA’s safeguards are insufficient for their own peace of mind, what additional precautions can be followed?

Rafia Ahmad is an employment solicitor at Backhouse Jones.

“The issues which have arisen as a result of the Glasgow case highlight the employer’s obligations concerning employee’s health and safety,” she told Transport Operator.

“It is important for employers to include medical questionnaires as part of the pre-hiring process in order to ensure employees make clear what medical conditions they suffer from which may prevent them from carrying out their role: epilepsy, for instance.”

She advised carrying out periodic medical examinations.

“But this must be with the employee’s consent. This is usually best set out in a contract of employment,” she cautioned.

“The problem is that employees do not necessarily want to disclose everything, which can have serious implications for health and safety.

“But other than contractual clauses, there is nothing more an employer can rely upon to prevent employees from driving with conditions which could impact on their ability to carry out their role safely.

“Ultimately, there is only so much that an employer can do and there are serious privacy and data protection issues to be aware of from an employer’s point of view, as legally they are prevented from what can be seen as prying into the employee’s private life.”

Meanwhile, a leading figure in the Scottish bus operating industry has called for employers of bus drivers to be given “complete visibility” of job applicants’ employment records.

Ralph Roberts, the managing director of McGill’s Buses, told HeraldScotland: “If a driver was legally bound to allow their personnel file to be given from their previous employer to their new employer, there would be much greater quality control of who is put behind the wheel of a large vehicle.”

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