What if your employee driver has lost their licence to drive – but you don’t know?

Recent coverage of the appalling M1 minibus fatal crash has led to debate about employers not being informed when their employee drivers have lost their driving licence.

In this case in March 2018, one driver was jailed for 14 years for causing death by dangerous driving and the other driver received 40 months imprisonment after pleading guilty to death by careless driving. One of them had lost their licence to drive a month prior to the accident. The employer had a regular licence checking system in place.

In no circumstances should an employer allow its vehicles to be driven by a driver driving on its behalf unless the driver has a licence for that class of vehicle. That is obvious. It is an offence to drive without the correct licence and the driver is thereby also uninsured, (a further offence) as it will be a requirement of an insurance policy that the driver has the correct licence. It is an offence for an individual or business to ‘cause’ or to ‘permit’ driving without the correct licence or without insurance.

So, how does a business ensure that any employee driver it engages (whether directly employed or agency driver) is entitled to drive, not only when first engaged, but at all times after they commence work?

Any business should be carrying out driving licence checks at regular intervals after first being employed. The DVLA now recommends three monthly interim checks.

Employers must inform drivers that they will carry out regular checks and implement this.

There is no automatic mechanism whereby DVLA informs a business that one of its drivers has lost the right to drive. It would mean at any given time DVLA being aware of every business a driver was working for. No such system is currently in place and there is no plan for this.

The loss of the driving licence could happen in a number of ways:

• revocation by DVLA (sometimes the drive may not be aware of this e.g. following a change of address where the licence address has not been updated)
• disqualification in a criminal court
• removal or suspension of a goods or passenger vehicle driver’s commercial licence by a Traffic Commissioner (meaning commercial vehicles in Category C and D cannot be driven).

Some jobs are dependent on the employee having a driving licence and the work cannot be carried out without one e.g. a commercial driver. An employer can (and should) make it a contractual requirement that the driver a) has a valid driving licence as a fundamental requirement for the job, and b) the employee informs them of any event that affects or may affect their entitlement to drive e.g. acceptance of any fixed penalty, court cases etc.

Unfortunately, it may happen that an employee does not inform their employer that they have lost their driving licence.

It is said that there is a “loophole” in the law that needs closing (in fact there is no loophole, as Section 87 Road Traffic Act 1988 covers this). Whether ‘loophole’ is or is not a misnomer, what is the practical solution to this problem? In theory, only daily checks of licences would guarantee any driver was entitled to drive on any given day. This would create a huge logistical issue for businesses and would this be a proportionate response to address the very small number of drivers who are regularly and properly checked by their responsible employers, but who lose their licences between checks and deliberately do not inform the employer.

Regular checks diminish the risk and if such employees do fail to inform their employer then can be dealt with under employment disciplinary procedures. Ultimately, there may always be employees who fail to inform their employers of important matters and the only realistic approach is to prevent this as much as is reasonably practicable. If this method is adopted, then there will be protection for businesses that they have done everything to avoid unlicensed drivers going out onto the road.

For more information about this topic, and also Employment / HR issues including driver contracts, please get in touch with Tim Ridyard or Colin Makin of our Regulatory and Employment / HR teams.