Drug Driving - a growing concern?

Research has recently been released showing that drug driving is fast becoming as great a problem as driving under the influence of alcohol.

In Canada, it has been found that drugs played a part in one in three driver deaths in between 2000 and 2007 and two in every five drivers killed between 2000 and 2007 in Canada had taken some form of drug.

This problem is not limited to Canada, and studies have shown growing issues in the UK and Ireland as well. A survey of one thousand people aged 17-34 carried out by the Road Safety Authority produced the following results:

• 22% said they had been a passenger of a driver under the influence of drugs;

• 6% admitted driving whilst under the influence of recreational drugs; and

• Only 46% of those surveyed rated cannabis as an extremely dangerous drug to have taken before driving. In comparison nearly 75% believed that ecstasy and cocaine posed an extreme danger.

It should be remembered that it is not only illegal drugs that pose a problem. Many legal drugs can severely impair reactions and so can pose as great a threat to road users as illegal drugs.

The effects of alcohol on a person's ability to drive are widely known. However there appears to be a more limited awareness of the consequences of driving under the influence of drugs. In general terms, drugs decrease alertness, impair coordination, lead to increased risk-taking, poor decision-making and reduced cognitive function.

This is still a difficult area for the police and they are somewhat hampered in their attempts to detect driving under the influence of drugs at the road side by the lack of a single device capable of testing for a range of illegal drugs. This results in the police using preliminary impairment tests to assess subjectively whether a driver is under the influence of drugs. Clearly this is far from ideal but is symptomatic of the slow development of this area of policing. It is apparent that further developments are needed, both legally and scientifically, in order to regulate this area effectively.

Employers with fleet vehicles should take heed of this message and ensure that their drivers are fit to drive at all times. Employers could be committing an offence if they knowingly allow, or at the very least tolerate drug-related activities in their workplace and fail to act.

Most employers will have mobile phone policies and alcohol policies, but if there is no current drugs policy, this is something that should be considered.

The key elements of any drugs policy should be:

• Aims - explaining why it exists, what it is seeking to achieve and who it applies to.

• Responsibility - setting out who is responsible for carrying out the policy, including any tests or screening.

• Definition - including a definition of drug misuse which leaves no room for misunderstanding or ambiguity as to the scope of the policy.

• Rules - setting out how the employer expects employees to behave in relation to drugs and the disciplinary action that may be taken.

Supervisors will need to be clear as to what they should do in the event that an employee is found to have a drugs problem, i.e. in terms of encouraging them to seek help. Such concerns for the employee's welfare must be carefully balanced with the company's own legal position. Disciplinary action should be taken as a last resort because employees could be judged to have been unfairly dismissed if no attempts have been made by the employer to help them. It may be necessary to temporarily move an employee to a less safety-critical role, whilst help is sought.

Some organisations, particularly those in safety-sensitive industries where impairment due to drugs could have disastrous effects, have introduced drugs screening or testing either as part of the selection process for new employees or of the whole workforce. If testing is introduced it should be treated as a deterrent rather than a method of 'catching' drug users and should be carried out on a random basis.

Under Article 8 of the Human Rights Act 1998 individuals have the right to respect for their privacy and there have been numerous cases where employees have sought to argue that this right has been infringed by their employer imposing drugs tests on them. By way of example, in O'Flynn v Airlinks The Airport Coach Co Ltd [2002] a driver was found not to be have been unfairly dismissed after admitting taking drugs shortly before she was to undergo a random drugs test as she was aware of her employer's drug policy and had not objected to it.

The Employment Tribunal has had difficulty in finding that zero-tolerance drugs policies interfere with the right to a private life. In the majority of cases these policies will be justified for public safety reasons, under Article 8(2).

It is important to ensure that staff are aware that screening may take place and consent to it, the best way to do this being to include a provision within contracts of employment. O'Flynn demonstrates that if staff are aware of the company's drugs policy, including the possibility that they may be drug tested at random, and the disciplinary action that may be taken, they will find it difficult to later argue that their human rights have been infringed when they are tested.

If this is an area on which you would like further advice or assistance please contact our Road Transport specialist, Vikki Woodfine, on 0161 603 5060 or vikki.woodfine@dwf.co.uk.

Breaking news: consultation on the new O-licence regulation just published, by Tim Ridyard, Solicitor, Woodfines LLP

The awaited consultation document concerning the Access to the of Occupation of Road Transport Operator has been published today. The Regulation takes effect on 4 December 2011 and is important as it concerns the concepts of good repute, professional competence and financial standing, as well as national registers of operators. All operators in the hire or reward sector in both goods and passenger sectors should be aware of its provisions.

The consultation can be read here..............

http://www.dft.gov.uk/consultations/open/2011-11/

A later blog will provide further information and thoughts.

Tim Ridyard

Woodfines LLP, Cambridge

01223-411421

tridyard@woodfines.co.uk

Website: www.woodfines.co.uk