Compliance
To date there have been relatively few examples of successful prosecution of employers for breaches of health and safety law on the road. Nevertheless, in the light of the HSE’s guidance and new police procedures for investigating road deaths, this may change. RoSPA and other organisations will continue to campaign to ensure that in future, where an employee has been involved in a road accident, for example, because they were: unfit; fatigued from working long hours; speeding in order to meet an impossibly tight schedule; driving a defective vehicle; or not properly trained, the HSE and the police will investigate jointly and, where appropriate, prosecute under health and safety law. Indeed, some prosecutions on these grounds have already been taken. They will also be campaigning for HSE, where necessary, to issue prohibition and improvement notices in relation to MORR during their visits to workplaces.
Road traffic and health and safety law complement one another. Employees have duties as individual road users, but employers too need to take adequate steps to meet their duties under the HSW Act and the MHSWR, especially where risks are likely to be relatively substantial. At the very least this should include making a ‘suitable and sufficient’ assessment of the risks faced by their employees on the road and examining what ‘reasonably practicable’ measures might be taken to reduce those risks, including, for example, additional training. They are also under an obligation to consult with their employees and/or their safety representatives.
Such an assessment should be seen as part of normal health and safety risk assessment work in the rest of the organisation and should therefore also encompass relevant occupational health issues such as ergonomic factors associated, for example, with musculo-skeletal disorders (such as low back pain), eye strain, noise, vibration and stress.
Some particular features of road traffic and employment law which need to be borne in mind by employers include the following:
- all drivers must hold a valid driving licence for the class of vehicle they are asked (or allowed) to drive;
- drivers who lose their licences may not be dismissed unless the possession of a valid driving licence is specifically mentioned in the employee’s contract of employment;
- employers as well as employee drivers could face prosecution if they colluded in allowing the latter to drive when they were disqualified;
- it could be an offence for an organisation to set its drivers schedules which would cause them to break speed limits or to have payment or reward systems which effectively turn a journey task into a race. (The organisation as well as the driver could be prosecuted);
- it could be an offence for an organisation (as well as a driver) to require or permit an employee to drive a vehicle which was in an unroadworthy condition;
- vehicles must be taxed and, where appropriate, have a valid test certificate and drivers must be insured (Employees need to have cover when using their own vehicles for work purposes); and
- there is a clear requirement for drivers involved in accidents to exchange names and addresses and details of insurers and, where such accidents involve injury to any party, drivers must report them to the police as soon as practicable but within 24 hours.
Another feature of the law that may be relevant in the on-road context concerns injured employees’ rights to compensation for injury due to occupational road accidents. Normally compensation for such injury is paid out under fleet motor policies but conceivably, if an employer had been negligent in taking action to reduce ‘at work’ road risk, the injured employee might also have a right of action for damages at common law, for example, following a crash due to fatigue in which no other vehicle was involved.
Those found guilty breaches of road traffic law can be subject to a wide range of penalties including imprisonment for more serious offences. Breaches of health and safety law may result in fines and or terms of imprisonment. Directors may be liable if it can be shown that their negligence contributed directly to an injury. In future, when the law of corporate killing’ is a amended, it will also be possible for companies (rather than their directors) to be fined for this offence as well.
To discuss your fleet management requirements and to book any of our courses call now on 0121 248 2105 (Birmingham) or 0131 449 9378 (Edinburgh) or email: fleetsolutions@rospa.com
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RoSPA is a registered charity: Registered Charity No: 207823 Patron: Her Majesty the Queen RoSPA Head Office: Edgbaston Park, 353 Bristol Road, Edgbaston, Birmingham B5 7ST, UK |
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