Over the recent weeks and months, those working within logistics, including transport operators and certainly, our delivery drivers across the UK have shot to fame, hailed as key workers in order to keep our economy moving throughout the unprecedented COVID-19 pandemic. Since March 2020, a temporary relaxation of the rules on EC and Domestic Driver’s Hours by the Department for Transport was also introduced to enable businesses to respond to an increased demand in goods.
As those relaxations are now being phased out, the UK economy as a whole, other workplaces and the movement of other non-essential goods starts to resume and resemble a ‘new normal’. All employers are very much presented with an opportune moment now to shine the spotlight back on Work Related Road Risk. Given that the legal framework which underpins this area otherwise remains unchanged and more than ever, businesses should look to comply.
Why comply with Work Related Road Risk regulations?
‘Driving for work‘ can be one of the most dangerous activities an employer asks an employee to undertake. Unless it’s crucial to the continued operation and running of your business, it is often an area that doesn’t attract full attention, nor is sufficiently prioritised. Operational challenges around who is responsible – HR, Health & Safety, Compliance, Claims and/or Insurance Teams, or Transport or Fleet Managers – can also impact upon businesses overall level of compliance, resulting in certain aspects falling through the cracks. It can in fact take all of these separate functions working together coherently to robustly manage Work Related Road Risk.
This stark reality is certainly one that employers’ should have at the forefront of their minds. This is because the law does not just apply in isolation to the more obvious lorry and delivery drivers, but also to any other business journey undertaken in vehicle/s supplied for work, including an ever increasing number of so-called “Grey fleet” (i.e. Employees’ privately owned vehicles used for business.)
Work Related Road Risk legal framework
Under Section 2 of the Health and Safety at Work Act 1974 (“HSWA”) it is “the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.” Under Section 3 of HSWA, it is further “the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.” The duty under Section 3 applies to other road users, and members of the public.
Employers are required under the Management of Health and Safety at Work Regulations 1999 to carry out suitable and sufficient risk assessments of any material risks arising from their operations, as well as identify and implement adequate control measures to eliminate or reduce those risks to as low a level as reasonable practicable.
In relation to Work Related Road Risk, this can include risks arising from: vehicle condition and maintenance; work rotas and delivery schedules; fatigue and driver hours; licencing/insurance; use of mobile phones; drug and alcohol policies; driver behaviours (competency, speeding, harsh breaking, reaction times etc.), as well as the safe loading or unloading of vehicles. All risks should be regularly monitored and reviewed. Adequate information, instruction and training should also be given to employees as appropriate.
Employers’ shall also ensure under various other regulations that any vehicles used for work are suitable for the purpose for which they provided, and that they are maintained and kept in good repair. Vehicles shall be kept in such condition that no danger is caused, or is likely to be caused, to any person in or on that vehicle, or on a road. Where a vehicle is owned and in control of the Employer, this can be more straightforward to manage. Where Employers have their own in-house maintenance facilities, they need to be mindful now how such activities and cleaning vehicles before use can take place in light of COVID-19.
With “Grey Fleet” – a primary obligation may fall onto the employee. Any employer who permits employees to use their own vehicle for carrying out of work – are you satisfied you have adequate policies in place to monitor and oversee that such vehicles are regularly maintained, serviced or kept free of defects to ensure both the employee and others are not placed at any increased risk of harm? Organisations should consider providing refresher training and guidance on things like the importance of vehicle checks / safe driving techniques within any return to work training, particularly when a vehicle may not have been used for many weeks during lockdown.
Actions speak louder than words….
The real significance and impact of legal compliance is demonstrated by the recent prosecution of Renown Consultants Limited by the Office of Rail and Road. An employed driver, who had exceeded working time limits, fell asleep whilst driving and caused a double fatality on a public highway in 2013. The focus of the regulator’s investigation was not just on the driver himself, but more his employer who failed to assess and manage his workplace fatigue prior to him undertaking that journey. This failure to enforce its own fatigue policies resulted in a criminal conviction and fine of £450,000 (not covered by insurance).
As our UK workforce now gets back to work – it remains of paramount importance that employers’ fully appreciate the importance of Work Related Road Risk and their legal responsibilities in this area. An increased regulatory focus may arise in responding to the gradual relaxation of restrictions introduced in response to COVID-19, and to ensure that persons are returning safely. It can be a highly daunting prospect for any employer to tackle this area, against a backdrop of other competing business pressures, as well as a lack of time, resource and expertise.
Emma Evans
By Emma Evans, Senior Associate, Jonathan Cowlan, Health & Safety Manager, and Jonathan Fritz Trainee Solicitor – Pinsent Masons LLP.
Pinsent Masons and Applied Driving Techniques (ADT) work in collaboration together to help businesses deliver a fully legally compliant approach to Work Related Road Risk, including e-learning courses and workshops for managers, various risk assessment and management tools, and detailed process and policy audits.
In this follow-up article, Dr Jim Golby, Director of Research and Customer Experience at Applied Driving Techniques, discusses Managing Work Related Road Risk as employees return to work post COVID-19 Lockdown.
This eBook will guide you through some of the key understandings you need to be able to manage driver safety effectively and, at the end, provide a series of free resources you can access to help you ensure your own driver safety management system is robust, legally compliant and in line with industry-accepted good practice.
Download this eBook from Driving for Better Business and SHP to cover:
- Why do we need to manage driver safety?
- Duty of care – a shared responsibility;
- Setting the rules with a driving for work policy;
- Managing driver safety;
- Ensuring safe vehicles;
- Safe journeys and fitness to drive;
- Record keeping;
- Reporting;
- The business benefits of good practice;
- Additional resources
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Interesting, very educative.