29 January 2020
Author: Jack Carfrae
Duty of care is an evergreen issue for the industry. Jack Carfrae highlights fleets' obligations to drivers and asks how they can meet them.
'The car is an extension of the workplace'. Chances are, this will not be the first time you have come across that phrase, but it is as true as ever. Even though businesses are legally bound to extend the same duty of care to drivers as staff on business premises, mobile employees are often neglected or simply not considered in the same vein as someone beavering away on site.
The spike in drivers favouring cash allowance over conventional company cars - driven by government policy - is not helping. Anyone for whom fleet safety is bread and butter will tell you just how easy it is for grey fleet to slip through the net unchecked and, simple though it sounds, a clear definition and communication of exactly what constitutes driving for work is a good start - as is getting a handle on which employees are behind the wheel and why.
The problem is far from exclusive to grey fleet, though, and whatever the set-up, the Health and Safety Executive (HSE) is crystal clear about companies' responsibilities to their staff.
The starting point for proper duty of care is a licence check, says Tony Greenidge, business development director at IAM Roadsmart.
"The bare minimum is to at least check that they have got a valid licence and it is valid for the vehicle you are going to put them in," he states. "For what it costs today, it is almost a no-brainer to get an outsourced company to do it for you, because you can now get licence checks from 60p."
The second essential check is insurance, particularly with grey fleets.
"If you are not checking it, you are absolutely mad," adds Licence Bureau managing director Malcolm Maycock. "If I have an incident and the police stop me, they are going to ask if I am driving for work. If I say I am, they are going to expect me to have coverage, and quite a lot of people have just got the wrong policy. They have got a commute policy, not a policy to drive
for work. Also, when we start a new process with a company checking grey fleets, the number of drivers who give us new policies is alarming - and I can't believe that many had to renew their insurance just before we started checking it."
The way to plug the holes is to apply criteria from more regimented aspects of employment to driving. The fact that it involves four wheels is "almost incidental", according to Acfo national chair Caroline Sandall.
"You need to think about it in the same way as recording people's legal right to work or if you are employing people that must have certain qualifications," she explains. "If you have got people who are servicing boilers or involved in gas or electric, they have to have particular qualifications to do their job - so how do you capture and record those?
"You almost need to think along the same lines when developing a duty of care programme, demonstrating that this person is legally able to drive, we know that their vehicle is roadworthy to the best of our ability and that we are applying risk assessment strategies. That is where some health and safety colleagues or knowledge of that kind of approach can be really useful."
The HSE lays down the law around duty of care and its 10-page Driving at Work publication (find it at www.hse.gov.uk/pubns/indg382.pdf) is described as "the industry bible" by Fleet Service GB's executive chairman Geoffrey Bray.
"It is an excellent document and one that should be embedded in [fleet] policies," he says. "If you use it properly, it is very useful and it is very powerful, because it demonstrates to people that you are doing it because you have to, not because you are trying to be difficult with your drivers."
There is more than a bit of rock and hard place about the fleet operator's role in this, because you are answerable to both your drivers and the authorities. Duty of care exists as much to protect the business as employees, so any initiatives need to be recorded in case you find yourself with a serious accident and a court date on your hands.
"It is absolutely critical that, as soon as you begin, you start documenting your strategy," says Sandall. "Should the worst happen, you are able to demonstrate what you have done, what you are continuing to do, what you have planned to do and when."
There is nothing new about the legislation tied to duty of care, but fleets should consider that the dynamics of penalties, enforcements and what you might have to report are subject to change. A near-certain imminent update is the law surrounding drivers using their phones to film and take photos at the wheel. Several motorists have successfully contested such cases on the basis that its language specifically refers to using a device to "communicate", but the government announced in November that it would update the wording by spring 2020.
Far more significant, should it come to fruition, is the prospect of reporting deaths and injuries sustained while driving under the HSE's Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). Companies are not currently obligated to register such incidences, but there have been calls for vehicular injuries to be added to the list, and speculation that the HSE might do just that.
"That would potentially make a difference, because a company's RIDDOR result is something they are obliged to declare," says Greenidge.
"If I am pitching for a contract and I have got a really poor RIDDOR result with regards to my fleet, that may actually hamper my opportunities. There has been some debate as to whether that would happen, because that could be seen to be a very positive way of changing people's attitudes and behaviours towards collating that data and having something that you have to improve."
RIDDOR's figures show there were 147 deaths at work in the year to October 2019. Of the 1,870 road deaths reported by the Department for Transport in the year to June 2019, around 500-600 are believed to be employees at the wheel, according to Greenidge and Maycock. Licence Bureau is among the organisations calling for driving to be incorporated into RIDDOR reports, but it has yet to happen - even though it is statistically the most dangerous activity an employee can undertake - and it is perhaps no coincidence that the HSE will this year receive £100 million less in funding compared with a decade ago.
That said, the organisation still issued £54.5 million in fines in the year to March 2019, which, combined with the existence of the Corporate Manslaughter Act, renders it worth dedicating a bit of resource and some 60p licence checks to brushing up your duty of care. Maycock warns failing to do this could mean: "Anything from serious, serious fines - which can be a percentage of turnover - to orders to apologise in the papers for death."
For bigger companies, smears can cost more than simply money.
"In terms of reputation, share price, it is huge," adds Sandall. "Especially if you are talking about a household name - a big bank, something like that - that is when you are talking about tens of millions or more. For smaller companies, the fine could be such that they may not be able to stay afloat."
All of that is on top of the bent metal costs, employee/vehicle downtime and increased insurance premiums that follow an accident, so whatever way you look at it, trouble is not cheap.
For all the mechanical elements - policies, checks and reports - the best way to improve duty of care is to create an environment in which it is front of mind. It is a never-ending task, but the companies with the best safety records are those that pay visible attention to employee welfare.
"The one thing you really have to crack is a hearts and minds campaign," says Sandall. "Your policy needs to be alive; people need to know about it and understand it. If [a prosecutor] were to sit down in your staff canteen after an accident and say, 'do you know what your workplace driving policy is?' and they [staff] said 'have we got one?', that is a major red flag.
"A bit of online training where people just tick, tick, tick, do a little test and forget about it, is close to useless in terms of actually impacting your accident history. The things that have worked well for me in the past are where they [employees] have done training, then sat round the dinner table and talked to their kids about the importance of it. That is when you start to get people to change their attitude and approach to what they are doing behind the wheel.
"Workshops, canteen sessions, apprentice schemes, manoeuvring in the car park - lots of little things that get people to stop and think - that will put you in a much better position if you have to defend yourself."
Duty of care: seven steps to success
- Establish which employees are driving for work and why
- Carry out regular licence checks, preferably via a third-party specialist
- Check grey fleets are insured to drive for work
- Download the HSE's INDG382 Driving at Work document
- Draw up a watertight policy and a clear process for designating who is permitted to drive for work
- Record everything you do and document future intentions
- Engage with drivers; make sure they know road safety fundamentals and why it is important to you and them.