New HSE ‘grey fleet’ guidance clarifies employers’ responsibilities

Out-Law News | 21 Sep 2021 | 9:21 am |

Katherine Metcalfe tells HRNews about new HSE guidance aimed at clarifying ‘driving at work’ duties

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  • Transcript

    The Health and Safety Executive has published new guidance for employers to reflect the rise of the ‘grey fleet’ and the gig economy. According to the regulator, the gig economy plus the increasing use of personal vehicles for work purposes – the so-called ‘grey fleet’ –  are leading to growing confusion over who has responsibility for the health and safety of the drivers. The new guidance aims to make it clear where responsibility lies for anyone driving for work purposes. 

    FleetWorld cover this news and says that ‘it marks a potential major expansion for fleet responsibilities’. It quotes Paul Hollick, chair of trade body the AFP, who says the changes are significant. He says: ‘They mean that any business that uses gig economy workers or contractors now have the same responsibility for their drivers and vehicles as any other part of the grey fleet and that means they are on the same footing as for their own company cars and vans.’ He goes on to question the approach some businesses may take towards compliance. He says: ‘Levels of grey fleet compliance are arguably not that high and it is perhaps unlikely that your local sandwich delivery business will quickly adopt all of these measures. At the other end of the scale, there may also be resistance from people such as large internet retailers, who might pursue a similar third-party argument to that used by Uber in terms of employee rights.’ In other words, he’s saying some  employers may try to use employment status arguments to distance themselves from their responsibilities – a point we will come back to. He goes on to warn ‘this is an area where fleet managers can struggle to take control because of lack of support from their board or other departments who are often slow to acknowledge the need for compliance.’

    The news is also covered in Business Car magazine, and most of the other media outlets for the sector, and the reporting is all very similar in the way it comes across, suggesting that the law is changing. So, in FleetWorld the caption is: ‘The changes to the HSE guidance mean that any business that uses gig economy workers or contractors now have the same responsibility for their drivers and vehicles as any other part of the grey fleet’. Similarly, in Business Car, the opening paragraph is: ‘The Health and Safety Executive has announced changes to its work driving guidance which could mean a major increase in responsibilities for fleet departments, according to industry experts.’

    So how accurate is that reporting? Are these new legal responsibilities? To help with that I spoke to health and safety specialist Katherine Metcalfe who joined me by video-link from Glasgow. I started by asking Katherine if the law has changed, or not:

    Katherine Metcalfe: “No, there hasn't been any change in the underlying law here, but what has changed, Joe, is the context. So we're seeing a real change in people are using different types of vehicles at work, a shift away from, for example, lorries, and vans towards personal cars, scooters, bicycles and motorbikes, so a change in how people are employed in the gig economy and just a greater use of cars as people shy away from public transport and in the light of the COVID pandemic.”

    Joe Glavina: “Why has the HSE published this new guidance, Katherine? Given the law isn’t changing, what are they trying to achieve?”

    Katherine Metcalfe: “They are really trying to update their guidance to make it clear how the law applies in these new scenarios but, as you say, the underlying law hasn't changed. So the users of these vehicles are still responsible under road traffic law for their own behaviours on the road. What HSE is trying to do is make it clear to employers how they need to manage that work related road risk when people are using all of these types of vehicles I've mentioned at work during the working day. So I'm not talking about the commute, but when they are actually travelling on work related business.”

    Joe Glavina: “Can I turn to the status of the drivers who might be caught by this. Paul Hollick says some employers might try to use employment status arguments to distance themselves from responsibility for the drivers but if he’s right that would run a coach and horses through the guidance. It seems to me those comments are misleading.” 

    Katherine Metcalfe: “They are. The law applies to people driving out work however they are employed, whatever their employment status is. So it applies to employees in the same way as it does to what we call ‘limb b’ workers, to contractors who are working for you, but also to self-employed people who may be undertaking driving for the purposes of your business.”

    Joe Glavina: “Hollick also says fleet managers might struggle to take control because of a lack of support from boards or other departments who, he says, are often slow to acknowledge the need for compliance. Your thoughts on that?”

    Katherine Metcalfe: “Yes, particularly the expansion into grey fleet has the potential to create a much bigger workload for fleet managers. There is a lot involved in keeping on top of the repair, the maintenance, MOT certificates, driving licences for whoever in your business might use their own car, and getting the budget for that and the support for those kind of comprehensive checks can be difficult. What I'm talking to quite a lot of my clients about is a sampling approach, a risk based approach, focusing on people who travel the most, or who they know have a number of penalty points on their licence, or have had previous accidents, to look at how they maintain their vehicles and that they have the right documentation in place and taking that approach can help fleet managers to have a more sensible level of check in place.”

    Joe Glavina: “Final  question, Katherine. Is there anything else that strikes you about the guidance? 

    Katherine Metcalfe: “I think it's interesting in the guidance, and it's a theme that we've seen throughout the whole of the COVID pandemic, a real emphasis on health and well-being too and needing to make sure that drivers at work are not getting fatigued, that they're not suffering mental ill health from being away from home or being asked to drive in difficult conditions. So that's another important part of this guidance that employers need to factor in when they are assessing journeys at work.”

    The HSE’s new guidance on work-related road risk was published on 7 September. We have put a link to it in the transcript of this programme. 

    - Link to HSE guidance on fleet vehicles