How often have you been involved in a nasty incident when you suspect it was caused by a drunk or drugged driver? Have you ever had the same thought about a colleague when turning up for a shift? That’s the bottom line, you need to trust your colleagues, surely it’s implicit in the job, is it not?
I want to discuss in more depth and in more modern times, the whole area of workplace drug and alcohol screening. Where the Corporate Manslaughter Act fits in for an employer and just what are the potential effects of the new drug driving amendments to the Road Traffic Act starting 2nd March 2015.
My experience of the UK Fire Service is from going up in a Snorkel when on a visit with the Boy Scouts in the 60’s. Followed some years later by arriving at a RTC having seen the head on collision with a family trapped in one car so badly smashed none of the four doors would open, and a driver of the offending vehicle trapped behind the wheel of his own car. A freind and I set to, sending another driver to a house to phone for you guys, stopping the other traffic and trying to check passengers through smashed windows and blood, all alive but barely conscious. Then it got worse, the families car caught on fire. Now we tried in vain to force open the front doors, then to extract them through the broken windows, only for the mother to tell us that their children were in the back – we hadn’t seen them for the carnage – two tiny ones, trapped on the floor under the front seats. By now suffering minor burns and loss of body and facial hair, we were forced away to leave it all to burn. The only thing we could do was to push away the other car with the trapped driver who had caused it all, away from the inferno and await the Fire crew. Respect to you guys.
Since then, for my old job in the oil industry, I have been trained on several occasions in Singapore, Aberdeen and Norwich for fire-fighting and rescue in smoked chambers.
Nowadays, well away from the oil rigs, I am running a drug and alcohol screening business in the UK and Ireland, and in odd but unique position to understand the implications of all three main issues facing any manager. They are the changes in legislation, the new activities of the police and the implications on the workplace. This knowledge comes from having spent 18 years on constructing police drug driver law with government departments, advising senior police, civil servants and MP’s including speech writing for the Lords and appearing in front of the Transport Select Committee. I also sat on the UK Legally Defensible Workplace Drug Screening Guidelines steering group and through my company,
D. Tec International Ltd. have started the D&A screening for hundreds of local companies and national blue chip corporations.
The UK has a long list of well-proven legislation and regulations dealing with health and safety in the workplace, no doubt familiar in some degree to all managers and company directors in all organisations. The specific area we are concerned about here is the employee being in a fit state to work and not impaired or affected by alcohol, medicines or illegal drugs and other stimulants. We could discuss the morals of consumption, but our key issue here is when it might affect their own safety, the safety of colleagues and the general public.
In another entirely different scenario, we also have the Road Traffic Act 1984 and subsequent revisions (RTA) – legislation familiar to us all in our personal lives with regards to drink driving and as always the moral argument of “Don’t Drink and Drive.” There is a general knowledge that in the UK “the limit” is 35 but most people have no understanding of what 35 is other than “it’s about a couple of pints.”
Going back to our workplace legislation, Health & Safety at Work etc. Act 1974 and revisions (H&S@WA), it says you must be in a fit state, to take care for your own and others safety, and importantly for managers, if you know or suspect a problem, you have to do something about it.
More recently and more of a concern should be the Corporate Manslaughter and Corporate Homicide Act 2007 (CM&CHA). With apologies to our legal brethren, this says “it is not enough to have a policy in place, rather, there must be operational systems and controls and an ability to prove they are being applied.” The consequences in the case of a fatality are that a judge may apportion blame, not to the company but to managers deemed responsible for the system failings. So personally, this could be a prison sentence and fines the magnitude of people’s homes!
In 2014, the CM&CHA eventually showed some teeth with multiple prosecutions and note, the majority were backed up by failsafe H&S@WA prosecutions. There is no easy get out!
So let’s switch back to the Road Traffic Act (RTA) which in its simplest form says, “do not drive if impaired” and this is through alcohol or drugs, or even through lack of sleep. This is RTA “Section 4” (Sec4) and remember the key point here is impaired through drink or drugs.
The difficulty with Sec4 has always been the Officer proving to the court the subjective level of impairment of the driver, at the time of the incident. Hence, many decades ago, the RTA was amended to add a prosecution if simply “over a limit” of alcohol. This is RTA “Section 5” (Sec5) and levels are set in blood, urine and breath. This is the source of the number “35” familiar to all, the road side breathalyser limit. The important part here is that the screening is from a breath sample and the evidential sample is blood or in the very near future, from breath on an “evidential” road side device!
We have all grown up with the shift from drinking and driving to not drinking and driving, either because of the morals of knowing you are factually “twice as likely to have an accident” at the legal level of alcohol, or from the effective deterrent of automatic loss of licence for 12 months or greater, plus fines and massive insurance hikes. In your roles, the visions similar to mine on that fateful day must reinforce that message?
Nowadays drugs are no weaker than years gone by, they are the same or stronger, and more readily available and taken in higher numbers. Please remember, people take drugs because it affects them, they wouldn’t bother if they didn’t! For a Police Officer at the road side (or a manager at the start of a shift), drug impairment can be more difficult to see and prove, yet with multiple drugs, or drugs taken with alcohol, impairment can be many times worse than alcohol alone. Only 10’s of people are prosecuted each year for drug driving in the UK in sharp contrast to our 80,000 drink driver prosecutions, or even in contrast to the 35,000 drug drivers prosecuted annually in Germany. So the RTA is now amended with the addition of “a limit for a list of drugs and medicines” called “Section 5a” (Sec5a) and it will come in force in England and Wales on Monday 2nd March 2015.
The novelty of the new Sec5a is that it is in two parts, firstly, the list of illegal drugs will be at a Zero Tolerance level and secondly, the list of impairing medicines will be at “above therapeutic dose” that will cause increased road risk, thus allowing for appropriately taken medication. For the RTA Sec5a, these drug levels will be screened at the roadside in saliva and then confirmed in blood.
Please remember that RTA Sec4 still exists. If you are impaired for whatever reason, you can be prosecuted with an automatic minimum of loss of license for 12 months.
So, where is the crossover for an organisation? Firstly you need to consider all risks in the job, not just the road. So if you are already Drug & Alcohol screening, you probably need to review your policy and systems, or if you are not screening, as a manager you need to look to sort it out for your own personal protection!
As far as the risks on the road are concerned, if the employee is driving for work, the road risk is the company’s, but the liability of loss of license and possible subsequent loss of employment is the employee’s. Presumably, as all employees are valuable assets to the organisation, there is a mutual and vested interest in being safe and legal. The employees should know better than to drink or drug drive, however make sure you can show a court that you advised them of this and you check it regularly.
The key point is that the RTA cannot be replicated in the workplace as an organisation cannot take the blood samples the police can, so direct comparison of results will never be possible. However it can be used as a lead. Organisations can, with the correct policy, take breath, saliva and urine samples for screening and confirmation. They can also use the same specification or similar quality screening devices to those of the police, and look to achieve or better those levels accepted as workplace best practice.
Drug and Alcohol screening seems a complex problem but working with an expert provides a simple, effective and secure solution.
Actions to take away
Policy: Have it in place and in practice. Have it reviewed regularly and by a specialist.
Educate: Impart knowledge as to dangers, personal responsibilities and consequences.
Deter: ‘Pre-employment’, ‘Random’ and ‘With Cause’ screening with quality equipment.
For more information, go to www.dtecinternational.com
About the Author
Ean Lewin served his apprenticeship in Barrow working on nuclear submarines and then worked around the world in the oil industry and later the automotive market. With an Engineering degree and a Masters in Business, he saw an opportunity with the novel DrugWipe device. He formed D.Tec International Ltd in 1996 and performed the world’s first Police drug driver screening trials in the UK during 1997/98. Dtec have implemented over 300 workplace drug testing systems in small local businesses, blue chip national companies and test around 90% of the London bus drivers. DrugWipe is currently with the Home Office for ‘type approval’ to start police roadside testing in March 2015.
