ADUK Archive

I will not be INSTRUCTING only advising/training - the driver is under no obligation to take my advise - is that legal?

ROG wrote:I will not be INSTRUCTING only advising/training - the driver is under no obligation to take my advise - is that legal?

If you do it in your own time (lunch times), then you cannot be seen to be receiving payment for 'advice'.

As Dave says, it's the remuneration aspect.

Assuming that they are asking you to look at their employees who have company cars or who drive on company business, they seem to be trying to meet "duty of care" obligations on the cheap.

If you want to do it in your own time, as you would with an IAM associate, then fine, otherwise I think you're taking a risk and should refuse (unless they're going to pay for you to become an ADI).

Angus

I am not able to become an ADI until legislation is passed to provide a non-screen HPT.
If I sit next to someone and give a running commentry on what "I" would be doing if "I" was in the driving seat, and making notes on what the driver is actually doing, then I am only judging and not giving instruction or training am I?

Instruction, advice, training? It's the same thing. After all, one dictionary definition of instruction is 'imparted knowledge'.

Think of it like this: if you're over 21 and have held a licence for more than three years you are entitled to teach, advise, instruct, coach or whatever someone in how to drive a motor car. What you can't do is accept money or money's worth for that instruction, advice or whatever unless you are an ADI.

Taking this 'grey' situation a step further, little, if any "Advanced" training is true INSTRUCTION more, as you say... advising (and training). However, the definition of "advise" is guide, instruct, teach, tutor etc. Similarly to train = to teach, to instruct, to coach, to tutor to educate!

Regardless of whether there is any benefit, either in hard cash or other means - if you are the person who is any way involved in giving advice to members of staff for Health and Safety purposes, IF something subsequently went wrong and a member of staff was killed or seriously injured whilst on company business, in company time and someone decided to sue that company, managers/directors could possibly point the finger in your direction, to avoid taking the flak themselves!

Even HSE documentation is grey and vague...

Health and safety law requires employers ...to ensure so far as reasonably practicable the health, safety and welfare of all employees and to safeguard others who may be put at risk from their work activities. This includes when they are undertaking work-related driving activities. HSC’s enforcement policy statement recognises the need to prioritise investigation and enforcement action. The police will, in most cases, continue to take the lead on the investigation of road traffic incidents on the public highway. Enforcement action by HSE will usually be confined to incidents where the police identify that serious management failures have been a significant contributory factor in the incident.

Susie wrote:IF something subsequently went wrong and a member of staff was killed or seriously injured whilst on company business, in company time and someone decided to sue that company, managers/directors could possibly point the finger in your direction, to avoid taking the flak themselves!

Unless an employee is on a 'jolly' the employer is liable for the negligence of the employee.

Claiming the employee is negligent means the employer is effectively admitting their own vicarious liability in negligence.

I am sorry you are not getting the answer you wanted. It seems pretty clear that if you go out on a drive with a colleague in work time with a primary purpose of giving them hints on improving their driving you could be prosecuted. In practise that is very unlikely, but of course it would be quite wrong for your employer to ask you to commit an offence. If you do the same in your own time you are OK.

There is some grey territory between these positions, and it is also worth mentioning that you do not have to be an ADI to assess someone's driving - so your employer could ask you to go out with colleagues to assess whether they require driver training, and purely incidental to the assessment you could give them some tips. Do others agree that this would be legal? If you were considering doing things this way, I would suggest documenting that the purpose of the drive is not instruction.

ROG, I know we discussed your difficulties with a screen based hazard perception test before, but I must say I was never convinced that it would not be possible for you to learn to pass this test. Since no-one can see the video in 3D, I cannot understand what it could be that others can see and you cannot which makes it different for you than for the rest of us. If you use the practise DVD and pause the video, can you not pick out the hazards as you would be able to in any still picture? What then happens when you start the video running?

Sorry all to have hijacked the thread - but as I say we discussed this before so it is probably not helpful to have gone back to it!

Susie wrote:IF something subsequently went wrong and a member of staff was killed or seriously injured whilst on company business, in company time and someone decided to sue that company, managers/directors could possibly point the finger in your direction, to avoid taking the flak themselves!

I don't think that's the case. If the employer approves the training, they take responsibility for it. Under vicarious liability the employer only has to demonstrate that they provided sufficient training or appointed an employee who should have the knowledge/ability for the job. If the employee does something which is not in their job remit, or is not Professional they take responsibility for their own actions. (you get my drift?)

Eric

ROG wrote:If I am a full time PAYE employee of a company, and that company want me to improve the driving standards of their drivers, can I give driving advise to my workmates, if they want it, when they are driving, or do I have to be an ADI ?

If the circumstances are as described above, you would be breaking the law by doing that in work time in a motor car, i.e. while you are being paid by the company.
If you were an ADI it would be fine.

Only people who can do what you are describing are the Police.

Big Err wrote:If the employer approves the training, they take responsibility for it. Under vicarious liability the employer only has to demonstrate that they provided sufficient training or appointed an employee who should have the knowledge/ability for the job. If the employee does something which is not in their job remit, or is not Professional they take responsibility for their own actions. (you get my drift?)

Eric

The employee still takes responsibility for their own negligence even if an employer is vicariously liable. They both can, and most likely will, be sued.

I don't know how else to say this but your assessment of when an employer is not vicariously liable is, on my understanding of the law, incorrect.

If an act is committed 'in the course of employment' an employer is vicariously liable. This can include criminal acts by the employee. There was a House of Lords case on this 4 years ago so your sources may be out of date.

StressedDave wrote:True, but if you take things to extremis, they could be convicted of procuring the offence of giving instruction for money while the employee would be convicted of the offence itself.

If you are employed to give instruction (and I would suggest that if instruction is only part of your job then that amounts to the same thing) then Section 123 of the RTA 1988 makes the employer guilty of the offence along with the employee.

vonhosen wrote:Only people who can do what you are describing are the Police.

Strictly speaking, you mean formally appointed police instructors not just any police officer who might be asked to give a bit instruction don't you?

(Just looking at the exemption section of the RTA1988).

hpcdriver wrote:so your employer could ask you to go out with colleagues to assess whether they require driver training, and purely incidental to the assessment you could give them some tips. Do others agree that this would be legal? If you were considering doing things this way, I would suggest documenting that the purpose of the drive is not instruction.

I suggest you would be pushing your luck if you were to give 'tips' although I can make no reference to any authority to support this.

As for documentation the Courts generally treat things as they are not what people call them. However, it would be useful from an evidence point of view. Proving you are giving instruction without the 'instructee' making a complaint would be very difficult in the circumstances you describe.

MGF wrote:

vonhosen wrote:Only people who can do what you are describing are the Police.

Strictly speaking, you mean formally appointed police instructors not just any police officer who might be asked to give a bit instruction don't you?

(Just looking at the exemption section of the RTA1988).

Police won't let anyone instruct who hasn't completed the Police qualifying courses.

Do I infer from the replies on this subject, that an ADI, who is not an advanced driver, can be paid to teach others to improve their skills, yet an advanced driver/observer, who has the ability and knowledge at advanced level, cannot
This does seem to strike me that "if you are not in our club, you cannot play".
Where has all the logic gone