A new offence of driving, attempting to drive or be in charge of a motor vehicle on a road or other public place with amounts of certain controlled drugs above specified limits in the driver’s blood has been created by the Drug Driving (Specified Limits) (England and Wales) Regulations 2014.

These regulations came into force on 2 March 2015, and mean that if a driver is found to have amounts of one of the specified drugs above the prescribed limits, they can be convicted on that basis, without any evidence of impairment and without there needing to be a link between any impairment and drug use. By contrast, the previous legislation (which will remain in force) sets out the more general offence of a person driving or attempting to drive a vehicle if they are unfit to drive through drugs.

What is the scope of the new offence?

As might be expected, the drugs listed in the legislation include illegal drugs such as cocaine. However, they also include drugs which form part of medicines which are either legally prescribed or available over the counter, for example diazepam, ketamine, lorazepam and morphine.

The Department of Transport  (DfT) estimates that around 19 million prescriptions a year are issued for drugs which are included in the scope of this offence. Employers should therefore be aware that drivers are at risk of inadvertently breaking the new law when taking certain commonly prescribed medicines, with potential penalties of up to six months’ imprisonment, a fine of up to £5,000 and a minimum of 12 months’ disqualification.

However, the DfT has reassured drivers that people who use the drugs listed in the legislation legitimately, following the advice of a healthcare professional, will be able to drive without fear of being prosecuted. Drivers are encouraged to keep evidence of any legally prescribed medicines with them to speed up the investigation process should be they stopped.

What should employers be doing?

According to press reports, almost half of UK drivers are unaware of this new legislation. This means that employers play a key role in helping to ensure that their workforce is up to speed with the changes. This is particularly important where driving forms an integral part of an employee’s role, but given the number of people who drive to work on a regular basis it is of wider relevance.

The new legislation should be considered in the context of the general duty of employers under health and safety legislation to ensure, so far as is reasonably practicable, the health, safety and welfare of employees at work.  As part of this, employers should consider how the risks associated with both drug and alcohol use should be factored into their health and safety management system.

For many employers, this is dealt with by way of specific drug and alcohol policies. The new legislation should serve as a prompt for employers to look again at these policies, and indeed to consider introducing these if not already in place.

Awareness training is a key way in which employers can promote awareness of the workplace risks associated with drug and alcohol use and promote a safe and healthy workplace culture. This could be provided on a general basis, or targeted at individuals or groups of employees who have been identified as having the potential to be particularly affected.

Medical advice

In light of the general lack of awareness of this new legislation and the fact that employees may unknowingly commit an offence of drug driving, it would be wise to encourage employees who drive as part of their job to seek the advice of their GP or pharmacist about the possible effect prescribed medication may have on their ability to carry out their duties. Managers should consider modifying an employee’s duties or temporarily reassigning them to a different role whilst they are taking the medication.

Employers may wish to consider introducing a programme of drug screening. It will not be appropriate for all employers to include a drug screening procedure but may be relevant where staff drive or operate machinery or where working under the influence of drugs could cause injury to themselves, colleagues or customers. Drug screening can only be carried out with the consent of employees and the procedure must comply with the Information Commissioner’s Employment Practices Code. Employees should be aware of the circumstances in which any medical testing may take place, the nature of the testing, how information obtained through testing will be used and the safeguards that are in place for the workers that are subject to it. Withholding consent to a drugs test may be treated as a misconduct offence but only if this is specified in a contract or policy.

If an employee is convicted of a drug driving offence, the employer may need to take disciplinary action. Before doing so, consideration needs to be given to what effect the conviction has on the employee’s ability to do the job. Dismissal is not always an appropriate response.

If employers do identify the need for any change to policies or procedures, this should be done in consultation with employees, to ensure that any changes have the support of staff, with the effectiveness of any existing or new measures reviewed at appropriate intervals.