Gender Identity and Expression in the Workplace
Out-Law News | 08 Dec 2015 | 9:57 am | 3 min. read
The incident, which caused the deaths of six pedestrians and injured 17 others, could have been avoided if the driver of lorry, Henry Campbell Clarke, had been honest with his doctors and employers about a fainting episode he had experienced while driving a bus in 2010, according to Sheriff John Beckett's FAI determination. Clarke lost control of the lorry in a busy pedestrian area of Glasgow after fainting at the wheel just before Christmas 2014.
Litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that the recommendations in Sheriff Beckett's report would have significant consequences for anyone whose employees had to drive at some point in the course of their duties, as well as those providing or administering occupational health services.
"Information suggesting that a driver, or potential driver – as this will extend beyond those who drive for a living to most or at least many employees who may drive at some point in their duties – may be unfit or at risk could come to light in many ways, such as following an incident, in the course of routine health checks, when investigating absence," he said. "It may also arise when considering what reference to give, or what references to ask for; and how to follow up information included there."
"This will require careful consideration in light of existing rules, patient confidentiality and the expertise – or otherwise – of those likely to get the information. The one thing which cannot safely be done is to ignore the issue. If there is another fatality, anywhere in the UK, arising from a faint or collapse at the wheel it can be expected that the actions of those who could - it will be claimed - have avoided the incident will be examined with a fine tooth comb," he said.
An FAI is a judicial process which investigates and determines the circumstances of some deaths occurring in Scotland. They take place before a sheriff, who is required to produce a determination setting out time, place and cause of death, and any precautions or defects in the system which could have prevented the death. The sheriff can also make recommendations as part of the FAI process, although these are not required.
As part of his determination, Sheriff Beckett made 19 recommendations, some to Glasgow City Council as Clarke's employer; some to local authorities in general and some to the Driver and Vehicle Licensing Agency (DVLA) and the UK government. In particular, he recommended that the DVLA clarify its guidance in relation to the impact of a single incident of loss of consciousness on fitness to drive. It should also change its policy on notification from third parties so that information on fitness to drive from "ostensibly reliable sources", such as the police, can be investigated whether or not it comes in written form.
The sheriff also recommended that the UK transport secretary consult on potential legislative changes to ensure that information on fitness to drive provided to the DVLA is complete and accurate. This could include increased penalties for failing to notify the DVLA of any relevant medical conditions or disabilities when applying for a licence, in breach of the 1988 Road Traffic Act. The transport secretary should also consult on whether doctors should be given more freedom to report fitness to drive concerns about individuals directly to the DVLA, he said.
In his determination, the sheriff found that Clarke had "repeatedly lied" about his health and about a previous episode of fainting, or 'neurocardiogenic syncope', in particular "in order to gain and retain jobs and licenses". He provided inaccurate information to his doctors, to Glasgow City Council and to the DVLA, the sheriff said.
Sheriff Beckett also found that Clarke's previous employer, First Glasgow, had not referred to the driver's absence record or his previous fainting episode in its reference. In addition, that reference was not supplied until at least six weeks after Clarke had begun working as a minibus driver at Glasgow City Council.
"I consider that it was not appropriate for Mr Clarke's employment to commence in advance of both references being received," he said. "I recommend that GCC, when employing a driver, should not allow employment to commence before references sought have been received."
"That approach may commend itself to other local authorities and indeed any organisation employing a driver. It is of particular importance in the case of organisations which employ drivers of large goods vehicles and multi passenger vehicles," he said.
In his concluding remarks, the sheriff said that the "most effective measure" to prevent similar accidents occurring in future would be "to seek to avoid drivers becoming incapacitated at the wheel…responsibility in that regard lies with drivers themselves and DVLA," he said.
"It may well be that the single most useful outcome of this inquiry would be to raise awareness of the dangers involved in driving if subject to a medical condition which could cause the driver to lose control of a vehicle," he said.
Gender Identity and Expression in the Workplace