First promised 10 years ago, a new Corporate Manslaughter bill has finally been
approved by Parliament and is now law.
Any company permitting employees to drive on company business, in any vehicle, will
become subject to this new legislation, which will make it easier
for companies to be prosecuted for gross negligence leading to the death of employees
or members of the public.
If any incident involving employees driving on company business results in a fatality
the company will be required to demonstrate that the correct policies and procedures
were in place with regard to vehicle/driver legalities and vehicle maintenance/safety.
The penalty for a successful prosecution for failing to comply with the new legislation
will be an unlimited fine. The act also permits the courts to impose a publicity
order, requiring the organisation to publicise the details of its conviction and
fine - name and shame. Courts may also require an organisation to take steps to
address the failures behind the death - known as a remedial order.
Corporate manslaughter will now become the ‘prosecution of choice’ aimed at employers
of company drivers involved in fatal accidents, and will be far more punitive than
any previous legislation. The revised bill will reinforce the obligation on a company
to comply with Health and Safety legislation, and companies will not be able to
say that they were not warned of its arrival.
Every employee who drives on company business falls under the rules, not just company
car drivers. This means that companies are required to ensure their policies and
procedures are in place for company car drivers, ‘cash for car’ scheme drivers and
for any employees undertaking a company journey in their own private vehicle, no
matter how trivial the journey. Health and Safety law does not apply to commuting,
unless the employee is travelling from their home to a location for business purposes,
which is not their usual place of work.
In August 2001 The Health and Safety Commission issued a series of guidelines that
covers the employer’s responsibility towards the employee, which included the recommendation
that every company appointed a director to look after the health and safety of employees
– which included ‘at-work’ driving.
Given the current statistics, more people are likely to be killed or injured in
an ‘at-work’ road incident than in an accident in a 'fixed' workplace. Historically,
road safety relating to cars and vans has been addressed solely through road traffic
legislation, and enforcement of such legislation by the police and the courts has
been directed at individual drivers. However, employers are just as likely to be
prosecuted as well as the individual for causing or permitting a wide range of traffic
offences.
Another cause for concern in the event of an organisation being found guilty in
relation to a serious road traffic accident is the increasing number of civil actions
being brought by employees and third parties.
Following the Government’s indication that it intends to pursue a policy of reducing
road traffic accidents, the Health and Safety legislation already in place is to
be used, where applicable, in a bid to reduce the accident toll. This means that
employers are charged with managing the risks associated with ‘at-work’ road journeys
within a framework they should already have in place for managing Health and Safety
within their organisations.
The Association of Chief Police Officers has produced a ‘Road Death Investigation
Manual’, which, in the event of a fatal or serious injury accident, acts as a guide
to police officers who now investigate all road deaths as if they are unlawful killings.
In some quarters this manual as now known as the ‘Murder Manual’. The police will
primarily handle such investigations and they will only involve the Health and Safety
Executive (HSE) when there is sufficient evidence that failures in safety management
by the employer have significantly contributed to the incident. The police will
also assess whether the risks faced were foreseeable and beyond the direct control
of the driver. These could include whether the driver was fully competent to drive,
a poorly maintained vehicle or where the driver was not fit due to medical or other
reasons.
In summary, the police will be looking for the following evidence:
- Why was the vehicle at the scene?
- The mechanical condition of the vehicle – regardless of ownership
- The physical condition of the driver including signs of fatigue
- The legalities of both vehicle and driver – Licence, MOT, Insurance etc
It is for these reasons that a vehicle and driver audit trail is required to show
that the policy for employees driving on company business is based on Health and
Safety best practice lines.
Under the 1974 Health and Safety at Work Act, employers have a Duty of Care for
the safety of staff on ‘at-work’ journeys. Whether the workers are full time, temporary
or are driving their own vehicles on business, their road safety is the concern
of the company.
For a business to comply with Duty of Care they should:
- have a comprehensive road safety policy supported by top management
- have road safety management procedures in place, including risk assessment, and
implement safe practices that eradicate or minimise identified risks
- ensure staff are given relevant information, training and supervision to be safe
on the road
- regularly audit the safety of journeys, and amend policies and procedures accordingly
if new risks are identified
dutyofcare.com can assist with all of the above.
By law, employers are responsible for the safety of their staff and that includes
journeys undertaken for business purposes. In addition, by law, companies have the
same liability for individuals who drive their own vehicles on company business.
Many employers believe that by abandoning the traditional company car in favour
of the ‘cash for car’ alternative, they are avoiding responsibility towards their
staff when driving on business – they are not!
Whilst all of the above may make for gloomy reading it is now felt that, with the
thrust of the legislation aimed towards the ‘organisation’, very few individuals
are going to end up in jail unless it is proven that any one individual was guilty
of gross negligence. Hopefully this will enable fleet managers/administrators to
sleep a little more easily, while directors and senior managers may feel a little
less relaxed.
These regulations refer to the responsibility companies have to carry out assessments
regarding the health and safety of employees whilst at work, and for the safety
of others that may be affected by their work activities. Driving on company business
in any vehicle is affected by this legislation as the vehicle used on company business
is regarded as a place of work.
This requires the employer to ensure, as far as reasonably possible, the health
and safety of all employees whilst at work. This includes work related journeys,
and covers all drivers whether they are in company vehicles, using their own vehicles
for business use, temporary drivers or freelance, agency or contract workers.
This new act will be implemented on January 16 2009. It amends the sentencing provisions
contained in the Health and Safety at Work Act 1974.
The act is aimed at punishing individuals just as the 2007 Corporate Manslaughter
and Corporate Homicide Act, which was implemented in April 2008, targets rogue organisations.
However, unlike the Corporate Manslaughter/Homicide Act a breach of the new Health
and Safety rules will not have to result in a death.
The new Offences act extends the £20.000 maximum Magistrates Court fine to a wider
range of Health and Safety offences for which fleet managers and fleet decision-makers,
including directors, could be prosecuted for, up to two years in prison, if convicted
by a Crown Court, a fine or both.
Health and Safety legislation could be used to prosecute an employer whose management
failings resulted in an accident that was caused by, for example:
Illegal /unsafe tyres -- A poorly maintained vehicle -- An employee being forced
to work long hours.
The new act has been introduced amid concerns among MPs and Peers that existing
punishments for individuals that breach Health and Safety laws are too low.
These regulations ensure that work equipment is suitable for its intended use, safe,
inspected and properly maintained. It also requires employees using the equipment
to be properly trained. Vehicles used on company business come into this category.
These set out the number of hours employees can be expected to work. Hours are based
on rolling averages that ensures employees do not have to work more that 48 hours
a week over a 17 week rolling period. Time spent behind the wheel on company business
will count towards the total hours.
This modernises current legislation to introduce variable penalties for speeding,
to get tougher on drink driving and to punish hand-held mobile phone use more harshly,
plus other initiatives including no smoking in vehicles being used on company business.