Transport & logistics – Watching the clock20 September 2012
Vikki Woodfine explains the relevant legal requirements for businesses operating goods vehicles, and cautions practitioners that ignorance of the law on drivers’ hours could have dire consequences for employers, managers and drivers alike.
Think workplace safety and few will consider employees driving for the purposes of work as one of their key business risks. But, in 2010, there were 7103 accidents involving at least one heavy-goods vehicle, with 9686 casualties.1
While there may be myriad reasons why these types of accidents occur, driver fatigue is often a common factor. Certainly, it is an issue that traffic commissioners are alert to, and they will not hesitate to revoke drivers’ vocational licences and impose sanctions on businesses for failing to adequately manage the hours their drivers spend behind the wheel while at work.
Complying with the rules on drivers’ hours – which set out for how long professionals can drive and for how long they must rest, when driving vehicles in excess of 3.5 tonnes – should not be seen solely as a fleet issue, to be dealt with by the transport manager, or equivalent. Driver fatigue is a clear area of risk for businesses and one that could be greatly improved with input from health and safety managers.
Drivers’ hours legislation
The obligations imposed by these rules (Regulation (EC) 561/2006) on businesses and drivers are complex; however, the key obligations are summarised in the table on the adjacent page.
Clearly, when driving a large goods vehicle under an operator licence, this and other activity must be recorded. This is done via a vehicle’s tachograph.
Since May 2006, all commercial vehicles over 3.5 tonnes coming on to the market must have a digital tachograph that records how long drivers have worked, over what distances, at what speed they have travelled, and details of the breaks they have taken. However, operators can continue to operate an analogue tachograph in any vehicle registered before that date.
Digital tachographs make it much easier for the Police and the Vehicle and Operator Services Agency (VOSA) to detect infringements of drivers’ hours. This is reflected in the enforcement statistics; 19,434 drivers’ hours prohibitions were issued last year alone – a figure that will surely increase as technology advances.
Indeed, a report adopted by the European Parliament Transport Committee in May this year has recommended that digital tachographs should have the added ability to monitor a driver’s record by using global-navigation satellite systems.2 If the proposals are accepted, the devices, which could be mandatory by 2020, would also allow wireless transfer of data. This would enable traffic authorities to run remote checks and identify breaches without even stopping vehicles.
While businesses must continue to comply with drivers’ hours rules, managers need to move away from a rigid thinking that their obligations are simply limited to requirements enforced by VOSA and that compliance with drivers’ hours is the be all and end all. Many factors contribute to fatigue, and concerns go far beyond managing and monitoring drivers’ hours alone.
Beyond the risk of general transport and traffic issues, consideration should be given to the wider issues posed by general health and safety laws and the potential impact of a corporate manslaughter conviction, which could result from an accident involving a driver who was fatigued, or exceeded their legal hours. If convicted of breaching safety laws, companies could face unlimited fines, significant disruption to their business, and untold reputational damage.
Enacting measures to reduce the number of incidents in the first place also benefits businesses by reducing the number of days lost to injury; reducing the number of vehicles being off the road for repair; improving workforce morale; and lowering insurance premiums.
Should a serious or fatal accident occur as a result of breaches of drivers’ hours rules, which were known, condoned, or encouraged by the business, the HSE is likely to consider prosecuting it under the HSWA and/or related legislation. If there is a fatality, the Police may launch a corporate manslaughter investigation. However, an employer will not have breached its duty if it can show that it took all reasonable steps to prevent exposure to the risk of harm.
For drivers’ hours offences, there is a similar defence for a business where it has taken all reasonable steps and due diligence to avoid the commission of the offence. In practice, this means that the business needs a system to be in place to ensure drivers’ hours are adhered to, and for that system to be broadly in operation. Planning and having in place clear systems could ultimately provide a defence under both drivers’ hours and health and safety legislation.
The role of senior management
Like any other hazard, fatigue is a risk that needs to be managed, and one that should be the concern of both the health and safety manager and the transport manager.
With the Police now more actively considering prosecuting companies for corporate manslaughter, the actions (or inaction) of senior management, including transport and safety managers, could put the business at risk of being exposed to a prosecution for one of the most serious criminal offences a company can commit, with potential fines of £500,000, or more.
Perhaps of greater personal concern for safety managers and transport managers is the increase in prosecutions of individuals following workplace accidents, not least because such a conviction can result in a prison sentence. Consequently, both transport and health and safety managers need to think seriously about investing time in their systems, following procedures to deal with driver fatigue, and ensuring that the decisions they take protect both themselves and the business.
Managing the risk
In our experience there are three key areas of risk: the driver, the journey, and the vehicle. These three considerations should form the basis of discussion between the fleet manager and their health and safety counterpart when devising a strategy for dealing with road risk.
Managers should be confident that their drivers are sufficiently competent and experienced. In reality, competency can only be demonstrated through the completion of appropriate training; this is especially important for younger, or less experienced drivers. Employers should prioritise training needs according to risk, with those drivers who are less experienced, or who have a poor accident record given priority, or additional training.
Drivers should be reminded of the need to take breaks and should be encouraged to take a break if they feel tired. The culture of the business should promote this practice, even if it means that delivery times could be affected. Importantly, senior managers should foster a culture of communication. There should be a ‘no blame’ reporting policy to show that the employer is more interested in monitoring and reducing accidents than penalising the driver involved, as this will enable managers to monitor risks and identify where improvements are required.
It is important for the success of any safety strategy that drivers are encouraged to provide feedback on their experiences, or share any concerns they might have about issues such as fatigue, or shiftwork. The drivers will often be the first to spot issues, and communication with those drivers will greatly assist both transport and safety managers to identify and deal with risks.
Poor maintenance of vehicles creates a severe road safety risk in itself, but if vehicles run poorly, or also break down frequently, this could have an adverse impact on the welfare of drivers. While dealing with this area would fall primarily within the remit of the transport manager, the safety manager should also ensure that:
- adequate vehicle maintenance arrangements are in place;
- drivers are trained to spot maintenance problems and report these issues as soon as possible;
- vehicles undergo regular planned/preventative maintenance; and
- there are clear provisions in place for drivers to contact someone if they consider the vehicle to be in an unsafe, or poor condition.
The planning of drivers’ journeys is also key to controlling the risk of fatigue. To ensure driver and public safety and compliance with the law, managers should:
- where possible, avoid scheduling driving between 2am and 6am, and 2pm and 4pm, or try to schedule breaks during these times (as, statistically, these are the highest risk times);
- avoid congested times/routes where possible;
- make sufficient time allowances for inexperienced, or trainee drivers; and
- plan realistic delivery schedules.
If driver fatigue is a causative factor in an accident then the operator’s licence-compliance history will be assessed to ascertain if more serious systemic failures can be identified. It is likely employers would have to demonstrate that: their drivers’ work is properly organised; drivers are properly instructed; and regular checks are made on compliance with drivers’ hours rules, through infringement reports and audits.
Tachographs should be analysed and infringement reports compiled; even minor infringements should be closely monitored, as such analysis might help bring to light inherent problems within the business.
Non-compliant drivers should be asked why they are struggling to work within their hourly limits, particularly if they are repeat offenders. It may emerge that drivers are being put under too much time pressure, or perhaps they need more training on drivers’ hours rules. While the smallest issues may be missed on weekly infringement reviews, if reports are reviewed, repeat problems may emerge that can be addressed.
Night time means more risk
It is widely accepted that night shifts are inherently more dangerous than day shifts, a fact supported by HSE statistics, which demonstrate that there are more accidents at night, particularly after a succession of shifts, when shifts are long, and when inadequate breaks are taken.3 It is therefore important to manage and monitor night-shift workers properly.
There is a number of risks associated with night shifts that should be considered. In particular, businesses should consider the disruption of drivers’ internal body clocks, sleeping difficulties, and driver fatigue, which, in turn, can affect performance, increase the likelihood of accidents, and might have a negative effect on drivers’ health.
To address these employers can adopt the following measures, where relevant:
- avoid placing drivers on permanent night shifts;
- if possible, offer drivers a choice between permanent and rotating shift schedules;
- where possible, adopt a forward-rotating schedule for rotating shifts – e.g. where the worker progresses from morning to afternoon to night shifts in a clockwise direction – rather than a backward-rotating schedule;
- rotate shifts either very quickly, e.g. every 2-3 days, so that a driver does not have to do too many night shifts at a time, or slowly – e.g. every 3-4 weeks, so that drivers have an opportunity to get used to new shift patterns;
- when switching from day to night shifts, or vice versa, allow drivers a minimum of two full nights’ sleep;
- ensure that free health assessments are provided for night-shift workers and promote healthy-living strategies, such as increasing exercise and improving diet; and
- control overtime and shift-swapping by monitoring and recording hours worked and rest periods.
While it is not always possible to avoid night work, by monitoring employees for fatigue, issues can be identified and managed before accidents occur.
Work together to reduce risk
The benefits to be gained by the transport and safety managers combining forces should not be underestimated. The issue of fatigue is increasingly recognised by regulators, and the implications of failing to address it could be huge. Managers should therefore take time to put their heads together to consider how they can reduce their level of exposure by ensuring the business meets both its operating responsibilities and its health and safety obligations.
If a business or its managers turn a blind eye to infringements, or simply fail to address and monitor this area, then they are exposing both the business and themselves to risk. However, with effective planning, cooperation and coordination the business, drivers and the public will be better protected.
2 Report on the proposal for a regulation of the European Parliament and of the Council, amending Council Regulation (EEC) No 3821/85 on recording equipment in road transport, and amending Regulation (EC) No 561/2006 of the European Parliament and the Council (2012) – www.europarl.europa.eu/committees/en/reports.html#documents
Vikki Woodfine is a specialist transport solicitor at DWF.
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