Driver conduct – it doesn’t stop when the engine does

21 November 2023

As the holder of a vocational driving entitlement, whether for Large Goods Vehicles (LGVs) or Passenger Carrying Vehicles (PCVs), drivers are signing up to a maintain a certain level of competency and conduct when driving. So far, so obvious, but did you know that as a PCV driver the obligations extend beyond how drivers behave behind the wheel? The Road Traffic Act 1988, the source of the rules on driver conduct, makes a distinction between the standards expected of drivers depending on whether they are operating LGVs or PCVs.

The definition of ‘conduct’ in the Road Traffic Act 1988 for LGVs relates to a driver’s conduct ‘as a driver of a motor vehicle’. However, if you are a PCV driver then this is expanded to include not only your conduct as a driver but also ‘in any other respect relevant to his holding a PCV driver’s licence’. The reason for this distinction is the nature of the work done by PCV licence holders – essentially, they are responsible for the people they carry in the vehicle and those people are entitled to place their trust in the driver.

Starting the ignition

Before beginning employment as a professional driver, it is vital to be fully acquainted with the relevant legislation. The status of a professional, in a regulated industry, means that drivers are individually responsible for fulfilling their regulatory obligations. This was explored in the case of Scott Craig Walker v Secretary of State for Transport where the judge confirmed that the drivers in the case “had a separate duty to be informed as to the regulations and to apply them. They could not simply blindly follow their employers’ directions when they knew, or ought reasonably to have known, that those directions did not accurately reflect the relevant regulations.” The traffic commissioner will not solely look at the conduct that has given rise to the referral in the first place, but also the conduct of the driver as a whole. The traffic commissioner will look at all conduct, good and bad, as long as it is relevant to the question of whether the driver is unfit to hold a licence.

The obligation to take into account the full range of the driver’s conduct can work both ways for a driver. If the incident leading to the referral is isolated then this will be positive factor, but if it takes place as part of a pattern of behaviour this will count against them. Any prolonged period of good or bad behaviour post-incident will be taken into account when considering whether regulatory action is required, and this can extend beyond the usual aspects of driving such as tachographs and road traffic offences, to behaviour such as aggressive or inappropriate interactions with public officials. Whatever elements of conduct the traffic commissioner considers as part of their assessment of fitness to hold a licence need to be clearly documented as part of the hearing.

On the road again

Once a driver is actually at a driver conduct hearing the main thing to remember is that they are inquisitorial in nature. Whatever the circumstances of the referral this is not an opportunity for a retrial, and it should at its heart be an opportunity for the driver to offer an explanation and context for the situation that has led to the referral. If there has been no court hearing then the traffic commissioner will make a finding based on the balance of probabilities, taking into account the seriousness of the allegations when assessing the quality of the evidence. The traffic commissioner should be alive to the fact that it is the role of the criminal courts to punish those who have committed a criminal offence – this is emphatically not the role of the traffic commissioner and regulatory action should be proportionate to the offence as it impacts on the individual’s fitness to hold a licence. This means that the criminal liability is less important than the conduct in the context of being the holder of a vocational licence and the expectation that places on an individual.
What this does mean is that any conduct as a driver is relevant, even if it was unrelated to the vocational element i.e. driving a vehicle that does not require a vocational licence. So it can be the case that conduct seemingly fairly minor in a criminal context can attract a more severe approach in a regulatory context. The traffic commissioner will take into account all the aspects of the case, including whether it was committed in a LGV/PCV, the number and type of offence, any repeat offending, whether it was planned and any general aggravating or mitigating features. General aggravating features range from the obvious such as death or serious injury, drug/alcohol or failure to cooperate with the police, to the more specific such as fatigue or invalid insurance. General mitigating features include a clean record, full cooperation with authorities and contributory negligence of other parties. There are also aggravating and mitigating features that deal with specific offences such as tachographs – taking into account the use or lack of use of devices for circumventing equipment, for example.

At the end of the road

For PCV drivers, there is the additional conduct element to bear in mind, namely that offences occurring outside of the driving sphere will also be relevant in assessing their fitness to hold a vocational licence. The most obvious and high-profile example of this would be sexual misconduct. This has clear relevance when considering that PCV drivers not only come into contact with the general public on a daily basis but also in the case of, for example, school transport they come into contact with vulnerable groups such as children and disabled people. It is right that steps should be taken to protect the travelling public where there is a risk. This is not to say, however, that an individual who is placed on the Sex Offenders Register would automatically be disqualified from holding a PCV entitlement. Each case is taken on its own merits and the traffic commissioner will assess each case accordingly. It may be that an applicant is refused until he/she is rehabilitated according to legislation but the existence of the conviction itself does not preclude the holding of a licence – all the circumstances will be taken into account.

This can be something employers need to be aware of when recruiting drivers or handling those who have or may have secured convictions. According to the Senior Traffic Commissioner’s Statutory Document No. 6, spent convictions “should not generally be referred to or taken into account in respect of a driver appearing before a driver conduct hearing but the conduct itself might be relevant” . The traffic commissioner does have a discretion to allow convictions and/or conduct to be considered but must take into account the evidence and circumstances of the case, balancing that conduct against other relevant material (such as the operator’s record). It can be a difficult balancing act for an employer who discovers that a driver has a conviction they were not required to disclose as part of recruitment but which the traffic commissioner may want to explore the circumstances of if they became aware of it. Robust systems and bespoke, accurate advice are key here.

The Backhouse Jones team can handle any driver related employment matters, as well as the regulatory action that can flow from the issues raised by driver convictions. For expert guidance on driver conduct hearings and everything relating to your operator’s licence contact Backhouse Jones’ team of expert road transport solicitors, call 01254 828 300, email regulatory@backhouses.co.uk or contact us here.