A duty of care

It is more than two years since the UK Health & Safety Executive (HSE) clarified the interpretation of the Health & Safety at Work Act 1974 in relation to driving at work. For once bureaucrats produced an easy to read and easy to understand paper Driving At Work: Managing work-related road safety – yet, in general, businesses have been slow to acknowledge or implement the requirements.

The fact is that businesses have always had a duty of care under health and safety legislation, but both the HSE and businesses have tended to ignore the vehicle as a place of work, leaving the Road Traffic Act and insurance to pick up the pieces. This is in spite of evidence that 23% of all work-related accidents involved a vehicle. Indeed, driving is the second largest cause of accidents at work, and HSE estimates the cost to the British taxpayer is £200m per year.

For too long firms have allowed their employees to walk out of the office, shop or factory and into vehicles in the belief that their internal risk assessments for manual handling or work stations were all they needed to have. Ignorant of the reality, we simply assume that 'we are insured'.

Even more worrying is that it is not just the duty of care to drivers of company vehicles that employers need to consider. Anyone who drives a vehicle on business is owed a duty of care, so, even if you have no company vehicles, but expect employees to use a vehicle on your business, you need a driving at work health and safety strategy. Even commuting poses a vicarious liability on firms.

This year a Court of Appeal decision on 24 April 2007, in the case of Michael Eyres v Atkinson Kitchens and Bedrooms Ltd, highlighted just how far the duty of care extends. It confirms the position that employers can be held vicariously responsible for the negligent acts of employees when driving at work. (for details see http://www.thegovernmentsays.com/cache/172835.html). In this case the Court of Appeal accepted a degree of contributory negligence by the employee (because he was not wearing a seat belt) but nevertheless confirmed that the employer had a duty to ensure that the driver was not tired and thus liable to fall asleep at the wheel.

In addition, the Road Safety Act has made employers equally responsible for prosecution under criminal law if they have ‘caused or permitted’ the driver to drive on business and the driver is subsequently prosecuted.

It is true to say that awareness is increasing, albeit slowly, with local and national government encouragement of car sharing schemes or home working being good examples of ways an organisation can mitigate its responsibilities.

More prosecutions

Motorways are now frequently closed following accidents involving injury, not because the Highways Agency is less efficient than the traffic police, but because they are crime scenes and the Highways Agency is charged with collecting forensic evidence to aid prosecutions under HSE legislation. This will result in more prosecutions, so employers need to be even more aware of their responsibilities.

So what should a business do? In brief, employers' basic obligations are to check insurance documents, check licences, check the vehicle is roadworthy at all times, create and communicate a health and safety policy, assess risk, train employees, and keep detailed records. The whole process should be monitored and repeated as often as necessary

This approach will not only help to defend against a prosecution, but is almost certainly guaranteed to improve morale – on the basis that your employees will recognise that you care, and will improve the overall cost of running the fleet. Evidence supports that fact that better-trained drivers save fuel costs, save insurance costs including uninsured losses, reduce wear and tear costs, and improve residual values.

Gaining an overview

Bringing in a fleet risk consultant is, for many, an essential route to providing an objective overview on all aspects of vehicle management. This initial overview is highly cost effective, and some fleet insurers provide it free as part of the overall insurance programme.

The audit has three main objectives: to measure current compliance with the driving at work health and safety legislation; to produce a detailed report of the practices and procedures currently in use, and to make recommendations detailing how full compliance can be achieved.

To further help companies understand this complex area of health and safety, the HSE is developing a workplace transport 'route map' which will emerge in the next few months and will particularly help small to medium sized firms. The route map will focus on site layout and design, vehicle selection and maintenance, personnel matters and management responsibilities. It is anticipated that a CD Rom will be sent to every UK business.

Unfortunately, many insurance brokers fail to advise their clients of the importance of managing fleet risks, believing that buying an insurance 'backstop' policy is sufficient. And one broker was once overheard to comment that helping clients in this way will only ‘reduce premiums and my commission’ – hopefully a one-off reaction.

There are a few exceptions among brokers however, who have embraced fleet risk management as an integral part of their fleet insurance proposition. And they win and retain clients, regularly, on a strategic consultancy level rather than on a price-driven transactional basis.

John Harley is managing director, THB Risk Management Limited, www.thbgroup.com/thb_risk_management.htm