DRIVER CPC – A TICKING CLOCK OR A TICKING TIME BOMB?
15th April, 2013
As I write this there are just 520 days before 10 September 2014 when vocational licence holders must have done sufficient driver CPC training to obtain their qualification card. If you take out Sundays and Bank Holidays that comes down to 442 days – just 63 weeks. Take out the Saturdays associated with Bank Holidays and that brings you down to 62 weeks. If drivers haven’t yet started to accumulate their driver CPC they are either going to have to do 35 hours in one block or a 7 hour block roughly every 10 weeks.
The costs of a 7 hour unit of training varies, as does the quality of the training available, but broadly speaking a 7 hour unit seems to be costing somewhere between £50 and £80 plus VAT. At £65 per unit that’s a cost of £325 plus VAT per driver to obtain the full 35 hours. Where the operator is paying for the training then the VAT should be recoverable, but if the drivers are paying for their own the cost increases to £390. If you are operating a fleet of 10 vehicles that’s a cost in the next year and a half of £3,250 plus VAT; that’s an annual figure of something over £2,000.
It is undoubtedly the case that holding a qualification card is part and parcel of an employee/driver holding an appropriate licence to drive the vehicles for which they are employed. Whilst there is no express obligation set out in the new regulations that require commercial vehicle operators to provide driver CPC training for their drivers, such an obligation might arise in the following circumstances:
- By contractual arrangement – Operators should check whether they have provided their drivers with the entitlement to time off work to train (and whether paid or unpaid) and/or to cover the costs of such training. Operators can of course introduce training agreements to recoup the costs of training in the event that a driver leaves its employment within a prescribed period.
- By custom and practice – If an Operator has previously offered to cover the cost of training in the past (and/or provided paid/unpaid time off work to train), then it may have introduced an implied term into the contract with its drivers.
- If an operator has 250 employees – In which case its employees have the right to request time off to train (s.40 Apprenticeships, Skills, Children and Learning Act 2009) in a similar way to the right to request flexible working.
- When dealing with a potential dismissal on grounds of capability/qualifications – In assessing whether a dismissal on such grounds is fair, a Tribunal will consider whether an employer took such reasonable steps to give an employee the opportunity to improve. It is important to treat employees consistently to avoid a finding of unfairness – therefore custom and practice considerations (as detailed above) are also relevant in this scenario.
If, in the absence of any contractual obligation outlined above, an operator does take the view that it is entirely up to the driver to get the relevant qualification; there are then employment law issues that will arise when, post 10 September 2014, there is a driver that is no longer qualified to drive the vehicles for which he or she has been employed. If, despite an operator’s encouragement to ensure its drivers have obtained the qualification, a driver either fails to attend training or refuses to obtain a qualification card, then an operator may be justified in dismissing that individual for lacking the necessary qualification under the following potentially fair reasons:
- Contravention of a statutory duty (or illegality);
- Incapability; and
- Conduct (in the case of a wilful refusal to undertake the training).
An appropriate procedure in accordance with the ACAS Code of Practice will need to be followed to avoid liability in the case of a claim for unfair dismissal.
Operators can enter into formal agreements with their employees where they will fund the training on the basis that employees then repay that over a period of time but such an agreement must be clearly documented.
All employees must be treated in a consistent manner to avoid a finding of unfair treatment. It is tempting to think that the cost of the training might actually be less than the time and financial cost of dealing with any (potentially complex) employment issues that arise as a result of drivers no longer being employable for the want of a qualification card.
have long held the view that the key to complying with the undertakings endorsed on every operator’s licence start with a level of driver training – a minimum of annual training on drivers’ hours, tachographs and daily defect reporting. The Senior Traffic Commissioner, Mrs Beverley Bell, has however recently stated that she expects operators to support drivers through their driver CPC training. Quite clearly she and all the other traffic commissioners will expect operator licence holders to ensure that drivers hold the qualification card post 10 September 2014.
It is envisaged that VOSA will be carrying out regular checks on drivers to ensure that the qualification card is held and where they find a driver that does not hold one, enquiry will be made at their employers to find out what they have done to ensure they are only employing drivers who are qualified. Given the stated views of the traffic commissioners about supporting drivers to obtain the relevant training, it will tend not to go too well for an operator at public inquiry who has done nothing to assist drivers in obtaining this training.
There are a limited number of exceptions from driver CPC: drivers of vehicles used for the non-commercial carriage of passengers or goods for personal use; vehicles undergoing road tests for technical development, repair or maintenance; vehicles used in the course of driving lessons for a person wishing to obtain a driving licence or driver CPC; vehicles carrying material or equipment to be used by the driver in the course of his or her work provided that driving the vehicle does not constitute the driver’s principal activity; driving vehicles with an authorised maximum speed not exceeding 45 kph; vehicles under the control of the armed forces, police, fire & rescue authorities and local authorities in the discharge of any function under section 5 of the Civil Contingencies Act 2004; and vehicles used in states of emergency or assigned to rescue missions.
If an operator cannot fit his drivers into any of the above exemptions, then this is yet another cost that is somehow going to have to be budgeted for. There is quite a lot of talk at the present time about there being a driver shortage and clearly there are a number of drivers who do not wish to have to do this training and will simply retire come the day. Add to this that as the deadline approaches the cost of training is likely to increase significantly and it will become increasingly difficult to book training. There have already been a number of cases of a very poor quality of training being provided so operators need to start thinking about this now to minimise the costs and to ensure that they get value for money if they do opt to assist drivers in obtaining this qualification.
For any queries regarding driver CPC, please contact Tim Culpin at [email protected] or call 01244 405533.
You might also be interested in...
18th July, 2018
Special Focus: Solicitors’ Professional Indemnity Insurance Run-off – it dominates the thoughts of sole practitioners and partners in smaller law firms in my experience and restricts the ambitions of firms. The SRA could help law firms by relaxing their rules on run-off cover on their Solicitors’ Professional Indemnity Insurance to help firms merge or close more easily. This would protect... Read More »
17th July, 2018
Helen Watson, Head of Employment Law at Aaron & Partners LLP, has taken up an invitation to become a Trustee of both the Trust Board and the Main Board Theatr Clwyd has bolstered its senior leadership team with the appointment of an experienced employment law solicitor to support its vision of being at the forefront of theatre making... Read More »
6th July, 2018
When a business invests in its community it deserves praise – but it must go beyond that, writes Helen Watson, a trustee at Claire House and partner at Aaron and Partners Solicitors. Corporate social responsibility (CSR) is the link between a company and the community in which it operates. As a trustee on charity boards including Claire House... Read More »