Driving hazards

1 February 2008
February 2008

Legislation is changing the fleet market and the growing threat of legal action means employers should be taking transport more seriously, as John Maslen reports

How's this for a dramatic update in the law? Employers face prosecution for death by dangerous driving if their staff are using a mobile phone at the time of an accident, according to new sentencing guidelines for the 1988 Road Traffic Act.

Avoiding jail, today and in future, means knowing and following the law.Among the legislation affecting how fleets operate are the Health and Safety at Work Act 1974, Management of Health and Safety at Work Regulations 1999, The Workplace (Health, Safety and Welfare) Regulations 1992, Provision and Use of Work Equipment Regulations 1998, The Road Vehicles (Construction and Use) Regulations 1996, Road Traffic Acts supported by the Highway Code, and EC Drivers' Hours Rules.

From April, there will also be the Corporate Manslaughter and Corporate Homicide Act, which makes it easier to prosecute companies for management failures following a fatal accident involving either employee(s) or a member of the public.

The problem is that it can be almost impossible to keep abreast of all the new laws and regulations that affect how you run a car and van fleet when keeping the vehicles on the road is a full time job in itself.

Most businesses haven't got the time to wade through the thousands of pages of legislation that affect them. But most of these laws can be condensed into a basic demand that an employer uses an acceptable level of common sense and compassion when it comes to transport so that it avoids accidents, drivers are kept as safe as possible and other road users are protected too.

Keeping vehicles in good condition, training drivers and ensuring they are not pushed too hard covers most bases, but in the harsh light of an average business day, this can all get forgotten.

False economy
The pressure of meeting customer demands and keeping costs down can also mean corners are cut, but this is a false economy since the impact of serious accident could threaten the future of the business.

If managers claim they don't have the time to make the fleet safer and make sure it is legally sound, ask them whether they instead have the time to handle a detailed police investigation into their business.

Hand them a copy of the latest version of the Association of Chief Police Officers' Road Death Investigation Manual. It outlines a comprehensive procedure for assessing the causes of a fatal road accident.

The manual says that police officers investigating fatal crashes must assume the death is an unlawful killing until proved otherwise. This level of investigation may also be extended to non-fatal but serious crashes.

Mark Lamb, a senior collision investigator, told a conference last year: "Vehicles involved in fatal road traffic collisions can be seized and held for up to two years. We can also seize other vehicles on the fleet to detect possible negligence."

And it won't just be the vehicles that are subject to scrutiny, he said: "How well do you audit your staff? Even something as innocuous as a lax mobile phone policy could come back to haunt you."

Lamb quoted a statement by the attorney general, which warned: "Any mobile phone use at the time of an accident, whether hands-free or not, will result in prosecution for death by dangerous driving."

Employer liability evidence collected by police could include delivery invoices that show evidence of overwork or stretched timetables. Bonus scheme information could be found to encourage bad practice or driving.

According to David Faithful, a solicitor with Lyons Davidson, the new law will put pressure on the fleet industry to focus on safety, even if the chance of prosecution is relatively low.

He says: "This will reinforce the obligation on a company to comply with health and safety legislation. We cannot say we were not warned of its arrival.

"Responsibility will have to be demonstrated from the managing director down."

Testing case
But even the current legislation affecting fleets can cause serious problems if they fail to comply with the demands it puts in place.

One of the most shocking test cases involved a company that encouraged a culture of long hours and was found liable for a road accident in which one of its workers was paralysed.

A van driver was flung from his vehicle after momentarily falling asleep at the wheel and was told he could sue the company where he worked as a kitchen fitter for damages expected to exceed £1 million.

This was despite his own contributory negligence in not wearing a seatbelt, knowing he was at risk of falling asleep after working for 19 hours, speeding and driving while texting on his mobile phone.

The court heard the small company used phrases such as "eating's cheating" and "you can sleep when you're dead", which were taken as evidence of its attitude to safety.

Roger Bibbings, occupational safety adviser at the Royal Society for the Prevention of Accidents, calls the case "a tragic reminder to employers of the need to manage occupational road risk".

The financial risk involved in ignoring the law is most likely to get boardrooms sitting up and taking notice.

Fleet managers need to get their bosses to listen and support risk management incentives and win the support of drivers. They need to create investigation-proof records and audit trails that show the firm takes health and safety seriously, and they need workable written policies and procedures for running the whole fleet.

It is a lot of work, but faced with the array of legislation, and a stern warning of the consequences of failure, no boardroom could turn a blind eye to the need for action.

What you must - and mustn't - do

Corporate Manslaughter and Corporate Homicide Act
The "nuclear option" when it comes to laws affecting fleet safety. There are warnings it could become the prosecution of choice for companies, but fleet managers have to end up killing one of their drivers before it comes into play. For more information on the act, see below.

EC Drivers' Hours Rules
UK Domestic Drivers' Hours Rules
The Road Transport (Working Times) Regulations 2005

It is both the driver's and employer's responsibility to ensure compliance with drivers' hours and Tachograph Regulations. They are applicable to goods vehicles in excess of 3.5 tonnes. Tachographs must be used to record hours of driving, other work, breaks and rest periods. For more information, visit www.dft.gov.uk (use the search function and type in "tachograph" or "drivers' hours").

Health and Safety at Work etc Act 1974
Employers have a "duty of care" for the safety of employees at work, regardless of the type or size of the business. There is also a duty of care to others who may be affected by their business activities, which, in the case of driving, means all other road users.

Management of Health and Safety at Work Regulations 1999
Employers are required to carry out risk assessments, make arrangements to implement necessary measures, appoint competent people and arrange appropriate information and training.

The Provision and Use of Work Equipment Regulations 1998
The regulations ensure work equipment is suitable for its intended use, safe and inspected, and properly maintained. They also require those using the equipment to be properly trained.

Road Traffic Acts, supported by the Highway Code
The Highway Code includes information on signs and markings, road users, the law and driving penalties. It is an offence for an organisation to set driver schedules that may cause them to break speed limits and/or have payment reward schemes that in any way incentivise them to do so. They also include laws from banning use of mobile phones while driving to anti-smoking legislation.

The Road Vehicles (Construction and Use) Regulations 1996
These set out standards for vehicles on the UK's roads.

The Workplace (Health, Safety and Welfare) Regulations 1992
These cover a wide range of basic health, safety and welfare issues including traffic routes for vehicles within the workplace.

Sources: DfT; Fleet News Guide to Risk Management

What the act will mean for fleets

  • The Corporate Manslaughter Act will make it easier to prosecute companies and other large organisations when gross failures in the management of health and safety lead to death by delivering a new, more effective basis for corporate liability.
  • It has reformed the law so that a key obstacle to successful prosecutions has now been removed. Small and large companies can now be held liable for manslaughter where gross failures in the management of health and safety cause death, not only health and safety violations.
  • It complements the current law under which individuals can be prosecuted for gross negligence, manslaughter and health and safety offences where there is direct evidence of individual culpability. The act builds on existing health and safety rules, so the new offence does not impose new regulations on business.
  • The act lifts Crown immunity to prosecution, so the likes of government departments will be liable to prosecution for the first time. The act will apply to companies and other corporate bodies, in the public and private sector, government departments, police forces and certain unincorporated bodies, such as partnerships, where these are employers.


Driving at Work - Managing work-related road safety

Corporate Manslaughter Act
www.justice.gov.uk/publications/corporatemanslaughter 2007.htm


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