Recent changes to road safety legislation mean employers need to understand the extent of their responsibilities, or face legal, financial and moral problems. Tom Jones explains some of the new legal requirements.
Are we uninformed or simply indifferent to the consequences of recent legislation regarding our duty of care responsibilities where occupational road risk is concerned? Is the information we receive scant and consequently our understanding vague, or have we been bombarded with the subject to the extent we no longer take a great deal of interest in it? One thing is certain, if we fall foul of these new laws we could be in for a rough ride legally, financially, and morally.
On 8 November 2006 the Road Safety Bill was given Royal Assent and became the Road Safety Act 2006. The Act allowed the Government to introduce a raft of new measures, which came into force during 2007.
Changes to legislation
New legislation covering occuaptional road risk include the following:
— A new charge of ‘causing death by careless, or inconsiderate, driving’, with a maximum penalty of five years in prison.
Over the years, dangerous driving has been difficult to prove in court. Without the addition of the offence of causing death, the alternative would be ‘careless driving’. This new charges will see an increase in drivers receiving custodial sentences for causing death.
In the corporate world, this could mean losing the services of employees, including highly-qualified members of staff, for what could be a number of years. Employers need to make sure their organization has a system in place to deal with these circumstances. Do they keep the position open, or does a criminal conviction mean severance? This could be a difficult position, especially if it was proved in court that the organization had a part to play in the initial cause of the death.
— A new charge of ‘causing death by driving: unlicensed, disqualified or uninsured’, with a maximum penalty of two years in prison.
This new law is aimed at the not-so-law-abiding elements of our society, and not a corporate issue you may think. But, consider those company drivers who tot up their points and are disqualified for 3 to 6 months, without your knowledge. They may continue to drive on your company’s behalf.
Consideration should also be given for employees who drive their own vehicles on company business without being insured for business use, or employees that drive company vehicles without the appropriate category on their licence.
— An increased penalty for driving while using a hand-held mobile phone of £60 plus three penalty points.
Should one of your drivers be involved in a collision while talking on the mobile phone to someone in the office, the Police and the HSE might be asking some awkward questions.
— Increasing the penalty points from three to six for failing to give information as to the identity of a driver.
There may be issues here where family members are permitted to drive company vehicles.
The Corporate Manslaughter and Corporate Homicide Act 2007
New and significant Acts of Parliament on health and safety are not commonplace. The Corporate Manslaughter and Corporate Homicide Act 2007, which comes into effect in April 2008, introduces a new offence for prosecuting companies where there has been a gross failing in the management of health and safety with fatal consequences.
It is the most significant piece of primary health and safety legislation since the Health and Safety at Work etc. Act 1974 (HSWA).
Elements of the new act include:
€ﾢ A focus on gross failures by organisations and the removal of the need to identify a “controlling mind”, which previously prevented large organisations from being successfully prosecuted. It will now be much simpler to prosecute companies and organisations for corporate manslaughter. This does not remove current legislation already in place, where individuals can still be prosecuted. The result for the individual whose negligence can be linked to the death is prosecution for manslaughter, and, on conviction, the likelihood of imprisonment.
€ﾢ While corporations do not intend to cause death, their intentional acts, such as failing to put a safe system of work in place, may lead to death. The sanction now available for a corporation is conviction and a fine that may have such severe consequences that it may not recover.
€ﾢ Companies and other corporate bodies, such as local government and central government departments, are not exempt from the Act.
The situation on the road
This is not sabre-rattling. This is the situation we now need to face. With statistics telling us that 3,201 people were killed and 28,954 people seriously injured on UK roads in 2006 we should be raising an eyebrow, especially when we look at other available statistics;
€ﾢ Approximately 3 million company owned vehicles in the UK and 7 million involved in work-related driving.
€ﾢ 66 per cent of company cars are subject to an insurance claim each year.
€ﾢ 50 per cent of all company vehicles likely to be involved in a road collision every year (Association of British Insurers, ABI).
€ﾢ 25 —30 per cent of all fatalities in crashes involving vehicles being driven for work (RoSPA).
€ﾢ Company car drivers are nearly twice the collision liability, and more people killed and seriously injured in ‘at-work’ road crashes than in all other ‘at work’ events put together (Transport Research Laboratory, TRL)
‘Statistics, statistics!’ I hear you cry. Yes, but when the real cost of road crashes are between four and 32 times the ‘bent metal’ cost (£750 per car, £1300 per light commercial and £4500 per heavy commercial) perhaps they are statistics we’d best keep from the Finance Director.
Calculating the real cost of vehicle collisions can be a frightening experience. The tragic personal consequences and anguish, and the cost of re-appointing and retraining key personnel aside, the practical day-to-day costs can soon mount up. The cost of repair or replacement vehicle, the increase in insurance or risk fund premiums, the time and money lost in post-collision administration, as well as lost production and lost sales. The effect on bottom line figures could mean the difference between an annual profit, or an annual loss.
Consider the increased business necessary to produce enough profit to pay for the total cost of ‘at-fault collisions’. As a conservative example: a 75-vehicle fleet with an annual collision rate of five. The average bent metal cost is £750, but the real cost is £750 multiplied by five (minimum), equals £2,800. Multiply this figure by the average number of accidents (five), means the actual cost is nearer £14,000. This is the sort of cost that can quickly eat into a company’s profit margins.
And this is before we even get into the realms of fines and litigation for ‘at-fault’ collisions. Remember it may not only be the Police or the HSE who will impose a financial penalty, nor indeed the ‘third party’ driver/passenger/pedestrian who will sue. It could very well be your own employee.
The real cost to society of one fatal crash is in excess of £1.3m, with the reported total cost to the UK of road crashes somewhere between £13 and £16 billion a year. And this is with 81 per cent of crashes unreported.
Understanding your duty of care
What then, do we really mean by ‘duty of care’, ‘occupational road-risk assessments’ and ‘work-related road safety’ (WRRS)?
€ﾢ a duty of care is a legal obligation imposed on an individual or organisation requiring that they exercise a reasonable standard of care while performing any acts that could foreseeably harm others
€ﾢ risk assessment includes: identifying the hazards, deciding who might be harmed and how, evaluating the risks and deciding on precautions, recording the findings and implement them, and reviewing the assessment and updating if necessary. Risk assessments for any work-related driving activity should follow the same principles as risk assessments for any other work activity.
Any company with more than 5 employees is legally obliged to possess a comprehensive health and safety policy. This should include:
€ﾢ a general statement of intent: this outlines the organisation’s overall philosophy in relation to the management of health and safety, including reference to the broad responsibilities of both management and workforce.
€ﾢ organisation – people and their duties: the chain of command in terms of health and safety management
€ﾢ arrangement – systems and procedures: the practical arrangements by which the policy will be effectively implemented). Work Related Road Safety should be part of the organisation’s generic health and safety policy.
However, in reality what this all means is looking at the on-road operations of your organisation, and consider the safest use of vehicles, drivers, and the work that is to be carried out.
This should include the following considerations:
€ﾢ What is the most effective use of vehicles for the needs of the organisation: company car/lease car/cash for car/own car?
€ﾢ Does it have a handbook, proper documentation, and is it regularly maintained?
€ﾢ Is it fit for purpose, fitted with load protection, and will it comply with potential load, weight, or towing limits?
€ﾢ Does it have or need specialist or extra equipment and ancillaries, and are they fitted according to the manufacturers recommendations?
€ﾢ Does it have a good NCap (European Safety) rating?
€ﾢ Have ergonomic considerations been taken into account?
€ﾢ Carry out full employee inductions.
€ﾢ Check on employees driving history.
€ﾢ Ensure driver fitness and health.
€ﾢ Warn against effects of alcohol and drugs.
€ﾢ Confirm currency of driving licence (i.e. validity/categories).
€ﾢ Categorise driver risk.
€ﾢ Decide if any intervention is required.
€ﾢ If necessary, carry out appropriate training.
€ﾢ Supply driver support services e.g. seminars/literature/on-line education.
€ﾢ Is the journey really necessary?
€ﾢ Is there an alternative mode of transport?
€ﾢ How long is it going to take?
€ﾢ What time of the day is it likely to be?
€ﾢ Has the weather been taken into consideration?
€ﾢ Is the work schedule realistic?
€ﾢ What are management expectations?
€ﾢ Prepare an overall company policy, which should include: the use of mobile phones, drink and drugs advice, overnight procedures and breakdowns.
€ﾢ Communicate the policy throughout the organisation.
€ﾢ Prepare and issue a driver information handbook.
€ﾢ Investigate and record collisions and, where possible, near misses.
€ﾢ Identify trends.
€ﾢ Consider disciplinary actions.
€ﾢ Source victim support and bereavement counselling.
€ﾢ Prepare a disaster plan.
€ﾢ Ensure the policy is reviewed regularly.
If you’re looking at developing a Work Related Road Safety Policy consider the following points during your preparation:
Before you embark on a programme of driver profiling and training that you may not necessarily need, carry out a risk assessment, prepare a work-related road safety policy, measure its effect, and then, and only then, consider any further action you feel may be necessary.
Include WRRS in the company ‘disaster plan’ or Business Continuity Plan. Will customers, partners and suppliers still want to do business with you if you are the subject of negative media attention or a high profile court case.
What you cannot measure — you cannot manage
What you cannot manage — you cannot mitigate
What you cannot mitigate — you cannot mediate…
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