Fleet Management - What is your duty of care?
Regardless of how many vehicles you operate there are a number of pieces of legislation that govern road safety, including the various road traffic acts and regulations supported by the Highway Code. In addition there are a number of related statutes that are intended to safeguard road-users, these include regulations covering the construction and use of vehicles, special health and safety legislation, regulations covering the carriage of dangerous goods by road.
The main responsibilities imposed by this legal framework, falls on the shoulders of road users and vehicle owners.
It is important to note that the vehicle is considered to be a place of work.
The main responsibilities under the road traffic acts are towards the driver of the vehicle. He is responsible for driving a safe vehicle, adequately maintained and insured, in a safe manner having due regard to other road users and pedestrians. The employer has a duty towards providing a safe vehicle and insurance if the vehicle is owned by the employer.
Under employment law the employer has a duty towards the employee and members of the public who may be affected by his work activities. The employer is also "vicariously liable" for the acts of his employees. The employee has a duty to comply with legislation etc.
Because of his status as an employer, an employer is liable for the injuries or death negligently caused by one employee to another, or to a worker from another company on his premises or to a member of the public injured by his employee.
Where the employee drives recklessly or breaks speed limits it is the drivers' responsibility. Where speeding was due to inappropriate scheduling of appointments by the employer, liability could be joint, i.e. they could both be prosecuted.
As previously mentioned, employers have a responsibility to manage Health & Safety. There need to be policies, procedures and ‘safe systems of work' in place that reduce work related risks, including the on-the-road activities of employees, so it is vital that risks arising from the fleet of motor vehicles are properly managed.
Risk management is all about common sense. You look at what might happen, assess the impact of potentially damaging events and take steps to prevent the worst from arising. Managing a fleet of vehicles is no different.
When vehicles are being used or driven on the highway by persons working for an employer under a contract of employment, the employer has duties of care, which are responsibilities under the Health & Safety at Work Act 1974 and also they have a common law duty of care. This means that under this ‘duty of care' an employer must take reasonable care to protect employees from the risk of foreseeable injury, disease or death whilst they are at work.
Key Action Points
•Carry out a Risk Assessment
•Produce a Health and Safety Policy, which includes your procedures to manage driver safety
•Ensure all licences are checked at least annually
•Regularly record maintenance and servicing details
•Record all training that has been completed
Ensure that all of the above measures include any private vehicles and drivers used on or in connection with the company's business activities
There are three key areas for risk management that you need to give attention to:
•Driver vetting and selection
•Accident reporting procedures
•Vehicle maintenance and inspections
•Managing driver fatigue
The Health and Safety Executive (HSE) have published guidance for employees on managing occupational road risk.
Persons found guilty of breaches of road traffic law can be subject to a wide range of penalties including prison for serious offences. Breaches of Health & Safety Law may result in fines or imprisonment.
Directors may be liable if it can be shown that their negligence contributed directly to an injury.
A criminal offence of corporate manslaughter has now been introduced, making it easier to prosecute companies responsible for fatal accidents.
The offence will apply when someone has been killed because senior management "grossly fails to take reasonable care for the safety of employees or others".
The maximum penalty will be an unlimited fine, as well as compulsory ‘Publicity Orders' a process in which the guilty company will be directed by the courts to publicise their shortcomings, highlighting to all the extent to which they were guilty of neglect. This could be catastrophic to business reputation and moral.
The employer responsibility also extends to ensuring that private vehicles used by employees on "Company Business" are also operated in a lawful manner. Checks by the employer should include the vehicles mechanical fitness i.e. MOT test (if over 3 years old for cars), services and maintenance records and regular vehicle condition reports.
They must ensure that the driver has "business use" insurance cover and that the driver is suitably licenced to drive that vehicle.
The Highway Code
The Health and Safety Executive (HSE)
Health and Safety at work etc Act 1974
The Stationery Office 1974 ISBN 0 10 543774 3
The Management of Health and Safety at Work Regulations 1999
The Stationery Office ISBN 0 11 085625 2