The risk of prosecution for the poor management of occupational road risk
By Hayley Saunders, senior associate, Shoosmiths LLP
A recent article by Les Pearce the Chair of the IOSH Midland Branch in SHP suggested that road safety was a poor relation as far as health and safety compliance is concerned. If Les is right then both businesses and individuals are putting themselves at risk of enforcement action and prosecution by not addressing this issue.
Most health and safety professionals are used to lawyers, stating over the years, that people would go to prison if they do not comply with health and safety legislation. But in the first 35 years that the Health and Safety at Work Act was in force only 11 people were ever imprisoned for breach of the Act or regulations made under it.
However, in 2008 the Health and Safety Executive changed its enforcement policy and as a result if they investigate an accident or incident they will consider the entire management chain of the organisation, and the role played by individuals and prosecute them where appropriate. Sometimes alongside or instead of the organisation itself.
Not surprisingly such a change in enforcement policy takes time to find its way through into statistics but since the change in May 2008, over 140 people have been imprisoned with 37 of these occurring during 2014 and 23 in the year to date. In addition some 50 persons have been imprisoned for gross negligence manslaughter arising from Health and Safety at Work Act offences. Following the introduction of the Corporate Manslaughter legislation there have also been 11 prosecutions against commercial organisations with more pending.
Against this background businesses need to ensure that, if road safety has been a poor relation in health and safety compliance that steps are taken to reverse that situation.
The Department of Transport estimate that over a quarter of all road traffic accidents involve someone who is driving as part of their work. In a road traffic accident on the highway the police will take the lead on investigating the incident, the Health and Safety Executive will only take over that investigation and prosecute where the police have identified that there are serious management failures that have been a significant contributing factor in the accident itself. Of course, should the management failure be so serious and involve a fatality then the police may well retain the matter to consider prosecution under the corporate manslaughter legislation.
Health and safety law applies to work activities on the road in the same way it does to all other work activities and businesses need to manage the risks to drivers as an integral part of their health and safety arrangements. It should not be forgotten that while health and safety law does not apply to people commuting, that is travelling between their home and their usual place of work, it will apply if they are travelling from their home to somewhere which is not their usual base. Certainly it will apply if someone is able to claim travel expenses for using their own vehicle as well as to those driving company vehicles.
For fatal accidents there is a police road death manual that investigators follow which includes a section on fleet management. It encourages the police to take an active interest in employers systems to manage occupational road risk including vehicle maintenance, phone records and driver hours as a matter of course. This applies whether it is a company vehicle or a vehicle being used by its owner under a reimbursement of expenses arrangement.
In addition to the cases listed in the article by Les Pearce and that used as the mock interview under caution I conducted at Safety and Health Expo we have experience ourselves of increasing interest by the police in management of work-related road safety.
As far as fatal accidents are concerned we have had a number of investigations which have proved difficult for commercial clients. These have ranged from an investigation into a drink/drive fatal accident following a celebration party held by the deceased employers at their premises through to a lengthy investigation in respect of the use of a hands free mobile phone which was being used by the driver at the time of the accident. Independent witnesses indicated that in their view there was no liability for the accident itself on the part of the driver. The police did accept that at face value but thoroughly investigated whether the use of the mobile phone itself, even though hands free, was an avoidable distraction and therefore a contributory cause to the accident.
Risk assessments should be carried out in the same way as other Health and Safety risks. Policies and procedures should be in place to cover:
- the driver, especially competency, fitness, health and training;
- the vehicle its suitability, condition and safety equipment; and
- the journey including route scheduling, expectation of the time and distance that employees will travel and fatigue. Whilst on heavy goods vehicles the driving hours regulation and the use of taco graphs control this area. These only apply to larger vehicles on the road and considerable proportion of work related journeys do not relate to such vehicles
Organisations must ask themselves both whether they have done all that is reasonably practicable in regard to the levels of risk to employees in this area and if could they demonstrate that they have effectively managed vehicle related risks. If not there is increasing risk of criminal liability as well a civil claim for damages from those injured which would inevitably follow.
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