RISK MANAGEMENT: Government drive to cut deaths forces the hand of business
11 June 2009
A new Government consultation document aimed at reducing road deaths has highlighted the need for companies to ensure their driving at work polices are legally watertight. Tristan Young investigates
Last month the Government set itself the target of reducing the number of deaths occurring on Britain's roads by a third, from the current 3000 to 2000 by 2020.
To help it achieve this goal the Department for Transport has issued a consultation document, which closes on 14 July, titled A Safer Way: Consultation on Making Britain's Roads the Safest in the World (www.dft.gov.uk).
In it, the DfT outlines a host of areas where it anticipates lives will be saved including, for example, cyclists, rural roads and young people, with each one warranting several pages of text - with the exception of driving at work. According to the document a third of road deaths, coincidentally, occur while drivers are on work business, so it is surprising that just half a page of its 120 pages are dedicated to that topic.
The reason for this is that, for business, the Government has a different tactic in mind to help it reach its stated aim. In this case, last year's Corporate Manslaughter Act together with this year's changes to the Health and Safety at Work Act will be used to make businesses take driving at work seriously, because the consequences of being found guilty of failing to comply in the event of an accident will be extremely expensive. And not just financially.
Although the first corporate manslaughter case, due in court this month, does not involve driving for work, some of the next few cases will, according to leading barrister Gerard Forlin, who specialises in defending businesses in health and safety, and corporate and gross negligence and manslaughter.
He points out: "The new law makes it easier to prosecute larger companies.
"Since January 2009 under the Health and Safety at Work Act, sections seven and 37, managers and directors can be imprisoned for up to two years. The test that they will face is what they ought to have known not what they said they knew. Namely, the 'I know nothing' response will not be sufficient.
"It may well be fleet and road incidents where the early prosecutions will be because, as compared to a major rail or air crash, they will be easier to investigate."
Forlin continues: "A large company being successfully prosecuted for corporate manslaughter will act as a catalyst for others.
"If they get a big company it will be an exemplar for all other organisations. One big company is worth a 100 small companies in terms of influence especially in the current economic climate. Shareholders would get nervous about damage to a company's environmental or health and safety reputation."
Forlin's view is backed by the Health and Safety Executive.
"Managing the risks of employees who drive at work requires more than just compliance with road traffic legislation," said an HSE spokesman.
"The Health and Safety at Work Act requires employers to take appropriate steps to ensure the health and safety of their employees and others who may be affected by their activities when at work. This includes the time when they are driving, or riding at work, whether this is in a company or hired vehicle, or in the employees own vehicle.
"There will always be risks associated with driving. Although these cannot be completely controlled, an employer has a responsibility to take all reasonable steps to manage these risks down to as low a level as reasonably possible in the same way as they would in the workplace."
However, the scary thing for business is that it's not the HSE that will take the lead in investigating work-related driving fatalities, as happens with all other work-related deaths. Instead it's the police that will lead the initial investigation.
As the HSE states: "The police will, in most cases, continue to take the lead on the investigation of road traffic incidents on the public highway. Enforcement action by HSE will usually be confined to incidents where the police identify that serious management failures have been a significant contributory factor in the incident."
And if you think the police have got better things to do, think again. Forlin says they now pay particular attention to this area. "The police have started looking at wider issues than traffic in such circumstances.
"Police already have a procedure to look at work-related road deaths. In essence, they look at the driver, the car and the organisation."
The Association of Chief Police Officers is in the second edition of its motor manslaughter manual that looks at the criteria in this situation.
However, Forlin offers businesses some hope: "Under the new test case of the crown v Porter, a prosecution has to be in relation to real risk not hypothetical or theoretical risk. However, one of the factors for a jury would be if there has been any previous similar incidents."