Health and Safety Road Risk Requirements
The law requires an employer to ensure, as far as is reasonably practicable, the health and safety of employees whilst at work and this includes driving at work. There are many complex regulations and guidelines related to this subject so we have put together some information and links to help you through the complexities.
What are your Legal Requirements?
Health and Safety at Work Act 1974 - requires you to ensure as far as is reasonably practicable, the health and safety of employees whilst at work. Employees driving on company business are considered to be undertaking a work related activity, and the vehicle they are driving is regarded as a place of work. You also have a legal responsibility to ensure that others are not put at risk by your organization's work related activities.
Management of Health and Safety at Work Regulations 1999
Require you to carry out an assessment of the risks to the health and safety of your employees whilst at work, and to others who may be affected by their work related activities. You are required to review this risk assessment periodically.
The Corporate Manslaughter and Corporate Homicide Act 2007
Changes to the corporate manslaughter laws on April 6th 2008 now mean that companies whose staff are involved in serious accidents could be liable for gross negligence. For the first time, companies and organizations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.
What If The Worst Happened?
Since 2004 police road accident investigators are specifically instructed to consider corporate liability when investigating road accidents. This is in response to the government's tough new targets on reducing road
It is estimated that company drivers who drive an average of 10,000 miles a year have a 1 in 7 chance of having a collision each year.
Over 9 out of 10 collisions are caused by carelessness and driver negligence
It is estimated that on a daily basis 4 people die and 250 employees are seriously injured in work related driving incidents.
There are an estimated 3 million company cars on the roads and roughly 1 in 3 will be involved in an crash each year
Company drivers who drive more than 80% of their annual mileage on work related journeys are 53% more likely to be injured than similar drivers who do not drive at work
The annual risk of being killed, while driving for business reasons, is significantly greater than the risk of dying as a result of all other workplace accidents.
Every week around 200 road deaths and serious injuries involve someone at work
About 300 people are killed each year as a result of drivers falling asleep at the wheel. About 4 in 10 tiredness-related crashes involve someone driving a commercial vehicle.
Business drivers have collision rates that are 30 - 40% higher than those of private drivers.
In 2001 between 862 and 1035 people were killed or seriously injured in road traffic accidents involving somebody who was at work.
More than 60% of the 3 million company owned vehicles in the UK are subject to an insurance claim every year.
Company car drivers have nearly twice the 'crash' liability of drivers in general.
It is likely that more people are seriously injured in 'at work' road accidents than in all other noticeable events put together.
Evidence suggests that investing in defensive/advanced driver training may reduce blameworthy incidents by between 50-70% in the first 2 years.
Occupational Drivers who cover more than 20,000 miles have a 1 in 8000 chance of serious or fatal trauma.
Company vehicles are involved in 20 deaths and 250 serious injures each week
33% of all company vehicles will be involved in some form of road accident within the next 12 months.
Five times more people are killed while driving for work than in any other industrial accident.
Occupational driving assessments and development training can reduce the risk of collisions by up to 70%
Company car providers face tougher laws:
• Corporate manslaughter fines set to grow
• Fines could be 10% of a firm's annual turnover
• Firms whose employees drive for work are at risk
Businesses that provide company cars are to be liable for tougher corporate manslaughter penalties.
The Corporate Manslaughter and Corporate Homicide Act has come into effect from April 6 last year, but is open for consultation until February 7th 2009.
The law will also apply to firms that allow employees to use private cars for company business.
Under the law, organisations found guilty of corporate manslaughter when one of their drivers is involved in a fatal car crash could face fines of between 2.5% and 10% of their average annual turnover, which could run into millions of pounds.
Following the consultation deadline, the Sentencing Advisory Panel will give its recommendations to the Sentencing Guidelines Council, which will draw up the final rules for judges.
In addition to fines, companies may be forced to place advertisements in newspapers, television or radio, and send letters to shareholders and customers, admitting the mistakes.
In the past, though it has been possible to prosecute an individual director or fleet manager for corporate manslaughter, criminal action against a corporate body has been almost impossible. The Corporate Manslaughter Act makes it easier to convict organisations whose senior managers are found to be in breach of their duty of care and thereby cause a death.
The Act overcomes the barrier of having to identify the ‘controlling mind’ of an organisation. So an organisation can now be found guilty of corporate manslaughter if an organisational or gross management failing causes a fatality. This means that the actions of senior managers below director level could be deemed to be the actions of the organisation.
Employers already have a duty of care, of course, under the Health and Safety at Work Act 1974, to take reasonable steps to protect the health, safety and welfare of their staff. This applies to staff working remotely as well as those following more traditional work patterns.
The new legislation goes further, placing the onus on businesses to ensure that health and safety guidelines are followed and that the relevant policy documents are in place. The mere existence of a safety handbook, however, will not be sufficient defence in law. Companies will have to demonstrate that their policies are enforced and be able to produce appropriate evidence of compliance.
For employees working remotely, including homeworkers, this might include carrying out risk assessments on the premises to identify potential hazards, and ensuring they are trained to use any equipment and that it is maintained correctly.Remote workers who use their own cars for businesses are also covered by the Act. Businesses will need to implement robust policies to check, for example, that such staff hold valid driving licences and report any accidents, and use vehicles that are well maintained, insured for business use and have valid MOT certificates.
All organisations should review their health and safety policies in the light of the new Act. Any business that fails to address health and safety performance issues could find itself facing very serious charges. Smaller firms open to corporate manslaughter charges over employees using cars for company business
From April 6 2008, the Corporate Manslaughter and Corporate Homicide Act means companies could be held criminally responsible if an employee, driving for work, kills while at the wheel. The new Act sets out a new offence designed to provide a more effective means for prosecuting negligent employers following fatal accidents at work, including while driving. The Act does not change current prosecutions against individuals, but is aimed at cases where management failures lie across the organisation thus placing senior management under close scrutiny.
Companies must show they had an effective management strategy to identify ‘at risk’ motorists or face unlimited fines or potential closure. It is estimated that 85% of small and medium sized businesses are currently unaware of the new legislation and are leaving themselves open to criminal charges if one of their drivers is involved in a fatal road accident. Around 20 people are killed and 250 are seriously injured in ‘at work’ road crashes every week.
What Is The Current Legislation?
The Health and Safety at Work Act of 1974 makes employers responsible for, as far as is reasonably practicable, the health and safety of employees while at work. Under the Management of Health and Safety at Work Regulations 1992, amended in 1999, employers need to carry out an assessment of the risks to the health and safety of their employees while they are at work, and to other people who may be affected by their work activities. People driving on company business are considered to be ‘at work’ and the vehicle they are driving, regardless of whether the company or privately owned is considered to be a place of work. This does not include traveling to and from work, unless it is not their usual place of work.
What Has To Be Done?
In simple terms companies need to have a safety management system for driving at work just as they would for any other work related activity. This needs to cover:
- Vehicle maintenance and suitability
- Driver competency and training
- Journey management
- Internal management processes to monitor, review and react
If employees do not have company cars, should we still be concerned?
Company vehicles do not just include those provided by their employer, but also cover the employee's own vehicle when used for work purposes. Therefore, if an employee is using their own car to undertake company business - such as driving to meetings or going out for supplies - and is convicted of a motoring offence, then the company may be held responsible.
Employers must take responsibility to ensure privately owned vehicles used for company business are adequately insured for business use, are roadworthy, and that the employee has a valid driving licence. There must be an administrative paper trail to demonstrate that these checks have been carried out and backed up with the necessary policies and training.
What are the implications if an employee is charged for driving while using a mobile phone when driving to a business meeting?
Under new initiatives, police can request a meeting with a director of the employee's company and ask to see relevant policies, risk assessments and documentary evidence of training and effective management. The employer's compliance with health and safety legislation would come under direct scrutiny.
If an employer refuses or fails to co-operate, the sanctions include improvement notices and fines (up to £20,000 in the Magistrates Court and unlimited in the Crown Court), which can be imposed on both companies and managers, personally.
The employer should ensure that their policies on driving at work are prominent, making it clear that any breach is a disciplinary offence, and support this with relevant training records.
What could be the implications if an employee fatally hits a pedestrian while driving back from a client meeting?
The employer will be found guilty if, because of the grossly inadequate way the company's activities are managed, it has caused a person's death - for example, if the employee was driving for long hours either at the employer's request, or where the employer has simply failed to monitor their driving hours. Sanctions can include unlimited fines and/or a Court Order to remedy the failings.
Perhaps the most damaging implication is the risk to company image, as employers can be required to publicise the offence in a manner specified by the Court. An employer that operates comprehensive driving-at-work policies, ensuring all staff are aware and trained, is more likely to successfully defend such action.
If an employee has an accident in a company car, but fails to tell the employer, what action can we take ?
Provided the employer has a clear accident-reporting policy, then disciplinary action can be taken under its normal disciplinary procedures. Depending on the seriousness of the situation, this could ultimately result in the employee's dismissal. Where there is no policy in place, then disciplinary action could still be taken, but will be more difficult.
From April 2008, employers should not allow themselves to be in a situation where they do not have an appropriate policy under which to take such disciplinary action. The accident reporting policy must require the employee to provide details of the accident and co-operate with any resulting investigation. Administration can be undertaken through such methods as keeping an accident report card in the vehicle, although some large organisations operate call centres for drivers to report accidents immediately.
What measures should we take?
Assess your organisational structure to determine who could be considered a 'senior manager' - these individuals should be appropriately trained and competent for their role.
Review job titles and job descriptions to ensure they represent the seniority of the post-holders' position.
Provide update training for senior managers on their health and safety responsibilities.
Review all health and safety policies to ensure that statements made and standards set are achievable and do not exceed legal obligations, unless there are good reasons.
Check that your insurance cover includes legal protection in the event of criminal charges for corporate manslaughter.
Review your health and safety culture to promote a safer environment for your employees and, where relevant, the public.
Revisit your disaster management plan and ensure there is a protocol for dealing with the authorities and working with legal advisers when a fatality occurs.
Consider insurance and indemnity policies for staff members who may need legal support during the period of any investigation. This will need to cover expenses where they are not personally found guilty of such offences.
Concerning drivers and company cars:
Assess the driving capabilities of all new drivers.
Routinely screen driving licences of all drivers - not just company car drivers.
Implement vehicle spot checks - analysing general condition, roadworthiness and service history.
Monitor all drivers' working hours including travelling time.
Record, classify, group and statistically analyse all accidents.
Undertake a full risk assessment to identify problems.
Act on the information gleaned and prioritise solutions.
Design a management plan to implement the solutions and communicate it to all staff.
Introduce a driving safety culture that does not lightly accept accidents.
The definition of corporate manslaughter within the act is when “management failure by senior managers of a corporation, a Crown body, a police force, a partnership, trade union or employer’s association is a substantial element in a gross breach of duty to take care causing the death of employees or others”.
In the event of a fatality, an organisation’s conduct will be assessed looking at the extent of any breach of health and safety legislation, whether
Management were aware of the risks and whether they sought to profit from the breaches. Courts will look at attitudes, procedures and policies within the organisation. Penalties include unlimited fines and publicity orders.
To ensure compliance with the new legislation, you may wish to review your safety management policies and procedures making sure they are being applied within your company. Make your directors and senior management aware of their responsibilities training them where