Introduction on driver conduct and proposed changes
For goods and public service vehicle drivers, there can surely be no more valuable qualification than the vocational driving entitlements which enable them to drive the classes of vehicle for which they are employed. It is obvious why a lorry driver — who does not hold a licence to drive a lorry — is not an awful lot of use to an employer. The protection of that entitlement is vital to any driver — it is no exaggeration to say that their livelihood depends on it.
In this article, Chris Wagner of Pellys Transport & Regulatory Law takes a look at driver conduct in light of the current consultation on proposed changes to Statutory Document No. 6 on Vocational Driver Conduct and examines some misconceptions.
DVLA and Traffic Commissioners’ powers
For any driving licence holder, the key to retaining that licence is to stay on the right side of the law when it comes to driving and matters relevant to it. Convictions for motoring offences often attract penalty points which, as they rack up, can lead to a lengthy driving disqualification — or in some cases (for example, drink driving) an outright disqualification.
However, for holders of vocational driving entitlements, there is a threat beyond the power that the criminal courts hold to endorse driving licences or disqualify drivers. As the body that issues driving licences, it a common misconception that it is the DVLA that holds the power over, specifically, a driver’s entitlement to driver a bus, coach or lorry. But while the DVLA does deal with the administration, it is the Traffic Commissioner who decides whether someone is fit to drive a goods vehicle or public service vehicle — and he who giveth can taketh away.
Vocational drivers who offend and are convicted can readily expect that that will not be the end of it — once the criminal courts have had their say, the Traffic Commissioner may well wish to take further action at a driver conduct hearing, which may include the revocation or suspension of a driver’s right to drive goods vehicles or PSVs — powers that are specific to the vocational entitlement, and are separate and distinct from the criminal courts’ powers generally. What is crucial to remember is that this is not “double jeopardy”. The criminal courts are interested in bringing justice where offences have been committed; the Traffic Commissioner is concerned with people’s fitness to drive commercial vehicles; it just happens that a conviction for a motoring offence is an obvious starting point for assessing a driver’s fitness to drive professionally.
Conduct and criminal convictions
Another misconception which flows from this link between criminal convictions and conduct is the notion that the Traffic Commissioner is only concerned with convictions for motoring offences.
In fact, driver conduct covers a vast spectrum of areas (particularly for PSV drivers given how much more of their work is public-facing) of which motoring convictions or fixed penalties form only a small part. In fact, there is nothing which requires that driver conduct proceedings can only follow directly from convictions in criminal proceedings or the issue of fixed penalties.
By way of one example, a driver might well find him or herself in front of the Traffic Commissioner following a DVSA investigation which has revealed a number of drivers’ hours infringements, even where the DVSA decides not to prosecute for those offences — or where a driver’s failure to carry out a proper walkaround check has materially contributed to a maintenance issue (or worse, an accident).
Senior Traffic Commissioner’s Statutory Document No. 6 on Vocational Driver Conduct (in its present iteration, a 47 page document — though it is presently in the process of being updated, as is outlined below) provides a comprehensive outline of the sorts of matters that may give a Traffic Commissioner cause for concern, but even that is not exhaustive; the legal definition of conduct for both PSV and HGV is a driver’s “conduct as a driver of a motor vehicle”, while for PSV drivers the definition goes on to include conduct “in any other respect relevant to his holding a PSV licence”. Even the narrower definition for goods vehicle drivers is framed so as to cover a multitude of sins.
The crucial point for drivers to take on board is this: for Traffic Commissioners, drivers are ambassadors for the commercial vehicle industry. The Traffic Commissioners want drivers who are suitable to fulfil that role, and want to take action against those whose conduct suggests that they might not be.
Consultation on driver conduct
While the Traffic Commissioners’ powers over vocational entitlements are not new (having been enshrined in legislation decades ago), the way in which they deal with driver conduct is by necessity an evolving process — the law changes, and conduct issues which simply did not exist years ago are now matters which the Traffic Commissioner is bound to take into account (for example, there was no such thing as a failure to carry a driver qualification card before the advent of Driver CPC following the introduction of the regulations in 2007).
On 29 May 2019, a consultation was opened inviting stakeholders — ie those potentially affected by any changes — to provide responses to the proposed changes to the Traffic Commissioners’ Statutory Document No. 6 on Vocational Driver Conduct, the current version having been published in its current form since January 2017.
Any update to the STC’s Statutory Documents is important for operators, and in the case of Statutory Document No. 6, for drivers too. One must bear in mind that the Statutory Documents are designed to provide guidance to the Traffic Commissioners themselves and form the standard basis for how proceedings are to be conducted — so operators and drivers would do well to keep track of the proposed changes — and especially to make sure that they are familiar with the finalised document when it is published. They may also wish to provide responses to the consultation which closes on 24 July.
The proposed changes
The consultation document provides a useful summary of the proposed changes to the Statutory Document, some of the key changes being:
Confirmation that abusive behaviour or intimidation of officials by drivers will lead to Traffic Commissioners considering fitness to hold a vocational entitlement.
An increase in the age of refusal (ie the administrative backstop date given by Traffic Commissioners for the expiration of the period during which a vocational entitlement application is refused) from 70 to 80.
Clarification that conduct proceedings may be heard on the papers where a driver does not attend without prior notice (and even if a driver has requested an adjournment, the proceedings may still continue of the Traffic Commissioner believes the driver puts road safety at risk).
Amendments to the list of “entry points” included within the document (ie the table which provides a list of the types of matters which the Traffic Commissioner might consider conduct issues, and the sort of action the Traffic Commissioner is likely to take).
Additional guidance around drivers who require additional language support during proceedings.
A proposal to publish notice of driver conduct hearings and decisions (in common with the present process for public inquiries).
Driver conduct proceedings are serious and any driver approaching one on the basis that they are being called to see the Traffic Commissioner for a “ticking off” - or even considering not bothering to turn up — should keep in mind that if they have been called up, it is their livelihood which is potentially at stake.
The proposed changes indicate that the Traffic Commissioners are expanding the areas that might be considered “conduct issues”.
Drivers must behave appropriately both in and out of a commercial vehicle.