New NI Guidance on ‘Driving at Work’
09 February 2015
HSENI, the PSNI and the Department of Environment have worked in partnership to produce new guidance in relation to “Driving at Work in Northern Ireland: An Employer’s Guide” (the “Guidance”).
The Guidance closely mirrors that published by HSE(GB) in April 2014, entitled “Driving at Work: Managing work-related road safety” (INDG382).
The Guidance makes it explicitly clear that: “Health and safety law applies to work activities on the road and it is an employer’s responsibility to manage the risks to drivers.”
The Legislative Position
Employer’s have a general duty under Articles 4 and 5 of the Health and Safety at Work (NI) Order 1978 (the “Order”) to ensure, so far as is reasonably practicable, the health and safety of employees and third parties that may be affected by their undertaking.
More specifically, pursuant to the Management of Health and Safety at Work Regulations (NI) 2000, there is a requirement to manage health and safety effectively. This includes conducting a risk assessment and consulting with employees.
Additional duties will, of course, arise under general road traffic law, for example the Motor Vehicles (Construction and Use) Regulations (NI) 1999.
In addition to these general responsibilities of employers, it is worth noting that there are also duties placed on individuals. This includes every employee at work (Article 8 of the Order) who must take reasonable care for the health and safety of themselves and others. Additionally, there is a specific offence relating to directors, managers and/or other similar officers (Article 34A of the Order) who consent to, or connive at, or fail to exercise all such reasonable diligence as they ought in the circumstances to prevent the commission of an offence by the company/organisation. Therefore, managers cannot ‘turn a blind eye’ to health and safety matters.
Failure to comply with the Order and subordinate Regulations is a criminal offence which can result in enforcement action including prosecution. If a prosecution is commenced, Courts can impose unlimited fines on companies and individuals; however, individuals can also face imprisonment in serious cases.
In terms of work related driving, health and safety law does not apply to those who are commuting between their home and usual place of work. However, it does apply to employees who use their own vehicles to make any work-related journey. Potentially, this could include an employee who jumps in their car to deliver a company letter or parcel...
Who will investigate an accident or incident?
The Guidance states that the police will likely take the lead on investigating road traffic incidents. However, it may fall to HSENI to take enforcement action where it becomes clear that serious failings in the management of health and safety have been a “significant contributory factor to the incident”.
The Guidance makes it clear that where there is a death, there is a risk of prosecution in Northern Ireland under the Corporate Manslaughter and Corporate Homicide Act 2007 where: “there is evidence that serious management failures resulted in a ‘gross breach of a relevant duty of care’”.
There have been a growing number of corporate manslaughter prosecutions under this legislation in the UK since its introduction in April 2008, with 3 such convictions occurring in Northern Ireland. Guidance and Court precedent confirms that significant fines will be imposed where defendants plead, or are found, guilty. Northern Ireland’s record fine in this regard is £187,500 plus prosecution costs.
How can an employer manage work-related road safety?
The Guidance encourages employers to adopt a “Plan, Do, Check, Act” approach to the management of work-related road safety which, in summary, would entail the following:
- Plan: This would include conducting a risk assessment and producing a policy to cover driving related issues.
- Do: This would involve implementing your policy, including any training requirements, and ensuring that sufficient systems are in place. It will be important to communicate with employees in this regard.
- Check: It is important to monitor performance to ensure that systems are operating effectively. Any accident or near miss data will need to be considered.
- Act: This relates to learning from the information gathered and considering whether policies and procedures need to be updated, particularly in light of any changes to traffic legislation.
The above process should be seen as a management tool to encourage a cycle of continuous improvement.
The Guidance also contains a work-related road safety checklist which poses a large number of questions for employers to consider within the context of their own organisation. The checklist focuses on the following 3 key areas:
- Safe driver: Are drivers “competent and capable” and how is this checked?
- Safe vehicle: Are vehicles “fit for purpose” and properly maintained and how is this checked?
- Safe journey: Is there a proper system for journey planning and does the employer ensure sufficient time is afforded to “complete journeys safely”?
It may be of interest to note that simply because something is already required by law, such as wearing a seatbelt, or not driving under the influence of drugs or alcohol, or using a hand held mobile phone, does not mean that it should not be reiterated by the company and/or included in its policy. For example, if there were to be evidence, during an investigation into an accident, that there was a culture of not wearing seatbelts, which the employer did not address, this could result in enforcement action/prosecution. Similarly, if it can be shown that a driver was likely to have been fatigued due to their shift pattern, for example, the employer could be prosecuted in the event of an accident.
As with all aspects of health and safety, it is important to ensure that there is commitment at a senior level within the company to ensure work-related road safety. Further, a driving policy and any related documentation should be ‘living’ documents which are fully trained out, reviewed and updated to ensure they remain relevant and effectively implemented.
What might happen in an investigation?
At Carson McDowell’s client breakfast seminar on road risk on 23rd October 2014, clients were able to hear from Ian Kennedy, Retired Road Policing Inspector from the PSNI, about how the police may approach an investigation following a work-related road traffic accident.
Essentially the police can look beyond the collision scene and focus part of their investigation on the employer. This could involve requests for relevant documents including risk assessments, driving policies and procedures and details of instructions given in relation to various matters such as mobile phone usage.
Being able to produce the appropriate documentation is clearly very important. However, when employee interviews are conducted by investigators, a different picture can often emerge. It may become clear that in spite of the content of a policy, the picture ‘on the ground’ is quite different and that certain practices or attitudes are being tolerated. Employer’s should seek to safeguard against this by ensuring full implementation of policies and procedures and clear communication in terms of the company’s ethos and expectations.
In response to the Guidance, Ian Kennedy comments that:
“The additional guidance published by HSENI is timely and appropriate. Employers now have even more information to assist them to manage road risk and strive to protect the general road using public and those who drive in connection with their work; irrespective of how little of their time that involves or how minor the journey is in distance and purpose. It also provides a basis from which companies can strive to protect themselves from criminal prosecution, expensive litigation and bad publicity.”
It will be helpful for Northern Irish employers to have a guidance document that is fully applicable to this jurisdiction in order that they can be clear on the extent of their duties.
We would strongly advise all employers to review this Guidance in full and take steps to implement it in their organisation. Guidance is not compulsory but, if you do not follow it, you may be required to demonstrate that any alternative steps you take are an equal or better means of achieving legal compliance.
For further information on health and safety law, or to discuss any questions arising from this article, please contact Ashleigh Birkett.