Out-Law News | 22 Sep 2021 | 8:30 am | 3 min. read
The Health and Safety Executive (HSE), in conjunction with the UK Department of Transport (DfT), has updated its guidance on work-related road safety to make it clear that employers are responsible for privately-owned vehicles used for work.
The updated guidance reflects the expansion of the gig economy and the increasing number of workers using their own vehicles, including motorcycles and bicycles, for work-related journeys. These vehicles are often described as belonging to the ‘grey fleet’.
Health and safety expert Jon Cowlan of Pinsent Masons, the law firm behind Out-Law, said: “A challenge for many employers historically has also been the spilt and overlapping responsibility for management between health and safety, HR and transport functions. The new guidance presents an opportunity for more effective strategic ownership of work-related road risk issues.”
The updated guidance confirms that employers’ responsibilities extend to ensuring that transport used by workers, including dependent contractors and self-employed persons undertaking work for them, is, amongst other things, properly maintained, that appropriate protective equipment such as a cycling helmet is provided, and that driver hours are kept within limits.
Duty holders will need to make sure that they have adequate and robust arrangements, policies and procedures in place that work alongside innovation, and that any vehicle or driver safety technology is properly monitored and reviewed
The guidance aims to clarify the position for employers and to resolve confusion over where responsibility for legal compliance lies. Acknowledging the changing face of the workplace, the HSE said it aimed to “ensure guidance reflects these changes and also remains relevant for years to come”.
The guidance sets out an expectation for employers to rely on advancements in technology and innovation to help discharge legal health and safety obligations.
Work-related road risk expert Emma Evans of Pinsent Masons said: “The increasing number of technological advancements available to help manage work-related road risk is welcome, although perhaps not unexpected given the prominence of science and technology in powering industry advancement in general.
“Importantly, a ‘plan, do, check, act’ approach is still being recommended by the HSE in the context of new tech and data, and implementation is half the battle. Duty holders will still need to make sure that they have adequate and robust arrangements, policies and procedures in place that work alongside innovation, and that any vehicle or driver safety technology is properly monitored and reviewed, so that any on-going issues or non-compliance can be identified and addressed in a timely fashion. Failure to do so could be viewed as an aggravating feature in any work-related road risk prosecution,” Evans said.
The HSE said employers must carry out, and regularly review, risk assessments including planning journeys which are safe for their drivers and riders, thinking about timing and weather; consider the competence and capabilities of all workers and give appropriate training; as well as considering driver welfare and vehicle maintenance, putting appropriate mitigations in place where required.
The updated guidance reminds employers of the potential consequences of failing in their duties to their employees and others, which includes fines of up to £20 million or up to 18 years’ imprisonment for individuals, alongside reputational damage.
Partner, Head of Health and Safety
The HSE will look to investigate road traffic accidents where there is clear evidence that management failures were a factor
Employers could be charged for failings under the 1974 Health and Safety at Work etc Act (HWSA) but also in the context of work-related road risk, for gross negligence manslaughter or under the Corporate Manslaughter and Corporate Homicide Act 2007.
The latter could apply if a worker was involved in a road traffic incident while driving for work and this resulted in the death of the worker or another person, and there was evidence that the death was caused by either a grossly negligent act or omission, or by serious management failures amounting to a gross breach of a relevant duty of care.
Health and safety expert Kevin Bridges of Pinsent Masons said while prosecutions relating to occupational road risk have historically been uncommon, they were increasing in number.
He pointed to the recent prosecution of haulage firm owner Michael Holgate for gross negligence manslaughter after one of his company trucks, which had defective brakes, crashed and killed the driver and passenger of another vehicle.
Holgate pleaded guilty to an offence under Section 3 of the HWSA, but was also convicted of two separate counts of gross negligence manslaughter and sentenced to 15 years’ imprisonment. The truck driver was separately prosecuted under the Road Traffic Act and sentenced to six years’ imprisonment.
“The express mention of corporate manslaughter and gross negligence manslaughter in the updated HSE guidance is interesting. It certainly makes clear that the HSE will look to investigate road traffic accidents (RTAs), even though they may not be reportable under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations, where there is clear evidence that management failures were a factor in the RTA,” Bridges said.