EMPLOYERS DRIVEN INTO ACTIONQBE ISSUES FORUM NOVEMBER 2008

EMPLOYERS DRIVEN INTO ACTION NOVEMBER 2008

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INTRODUCTIONEMPLOYERS DRIVEN INTO ACTION

“It has been estimated that up to a third of all road traffic accidents involvesomebody who is at work at the time. This may account for over 20 fatalitiesand 250 serious injuries every week. Some employers believe, incorrectly,that provided they comply with certain road traffic law requirements... that isenough to ensure the safety of their employees, and others, when they areon the road. However, health and safety law applies to on-the-road workactivities as to all work activities and the risks should be effectively managedwithin a health and safety management system”.

Opening statement from HSE Guidance INDG382 Driving for Work.

Driving is an essential part of the operations of virtually every organisation in the UK today.With growing volumes of traffic on our roads, driving is statistically the most hazardous activityundertaken by most organisations’ employees, and hence the number one workplace-fatality risk.

In this Issues Forum, we review legal and regulatory developments affecting occupational roadrisk, for example recent relevant case law and corporate manslaughter legislation. In examiningthe business case for a risk-based management approach to this increasingly important issue, wehighlight some of the key hazards, risks, and control methodologies employers should consider.

ARE EMPLOYERS TAKINGA BACK SEAT?Until very recently health and safetyprofessionals have often neglected therisk of road traffic accidents (RTAs)involving ‘at work’ employees, seeingit as an issue for fleet managers. Suchattitudes are reflected in the absence ofspecific health and safety legislation andthe limited scope of enforcement actiontaken against employers.

Because the Reporting of Injuries,Diseases and Dangerous OccurrencesRegulations (RIDDOR) 1995 does notspecifically apply to most types of work-related RTAs, they tend to be statisticallyunder-recorded. Few organisationsdocument and monitor them like otherworkplace accidents, and they rarelyappear among risk management orhealth and safety key performanceindicators (KPIs).

The Health and Safety Executive (HSE)and the Department for Transport (DfT)published guidance on managingoccupational road risk in 2003. Despitesignificant lobbying from road safetygroups, however, the HSE has not sincepursued the issue with any great vigour.

Consequently, other than where largevehicles have been involved, neitheremployers nor the enforcing authoritieshave been strongly motivated to lookinto whether health and safetymanagement failures may havecontributed to ‘at work’ RTAs.

It is perhaps not altogether surprising,then, that few organisations considerwork-related road safety a priority.

A CHANGE OF DIRECTIONThe tide has recently begun to turn, andwe are now seeing a growing debateover the issue of employers’ responsibilityfor work-related RTAs. Two high-profilecourt cases have helped to focus mindson the issue of driver fatigue:

R v Roy Bowles Transport(1999)Two directors were convicted ofmanslaughter after an employee fellasleep whilst driving a lorry on the M25,causing a multi-vehicle collision in whichtwo people died. The driver was jailed fortwo and a half years for the offence ofcausing death by dangerous drivingunder the Road Traffic Act. Both directorswere given suspended sentences whenthe court found they had knowinglyallowed drivers to work long hours.

Michael Eyres v AtkinsonsKitchens Ltd (2007)The claimant in this case lost controlof his van and sustained serious spinalinjuries that left him tetraplegic. Hismanaging director was asleep in thepassenger seat at the time of theaccident. The claimant contended that

he had fallen asleep whilst driving asa result of working unreasonable hourswith insufficient rest, in breach of theWorking Time Regulations 1998. Hiscase initially failed when the High Courtfound that the accident was more likelyto have resulted from the use of a mobilephone. However the Court of Appealsubsequently held that on the balance ofprobabilities the claimant had indeed fallenasleep at the wheel. His damages werereduced by a third in recognition of hisfailure to wear a seatbelt or to realise thathe was tired and at risk of falling asleep.

The inference is that employers maybe considered negligent in respect ofemployees falling asleep at the wheelwhere they have failed to carry out arisk assessment, to put appropriatesystems in place (e.g. for switchingdrivers), and to ensure such provisionsare put into practice.

These decisions have far-reachingimplications for both civil and criminallaw. They are likely to be followed incases where employees are seen tobe working long hours leading to aforeseeably increased risk of injury,whether at the wheel or otherwise.

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CORPORATEMANSLAUGHTER ANDCORPORATE HOMICIDEThe Corporate Manslaughter andCorporate Homicide Act 2007, whichcame into force from April 2008, aims tohold companies and managers to properaccount by making it easier to prosecutewhen their gross negligence leads todeath. The new offence of CorporateManslaughter (Corporate Homicide inScotland) is targeted at collectivecorporate responsibility and does notapply to individuals. However, theoptions of prosecuting individuals formanslaughter or under existing healthand safety legislation remain, and mayindeed, be more widely used in the future.

It seems clear that we will see a greaterincidence of health and safety and bothindividual and corporate manslaughterprosecutions in relation to work-relatedroad deaths in future. Where a grossbreach of duty of care is held to haveoccurred, organisations and/or theirsenior managers are now likely to befound guilty.

The courts will, of course, considerrelevant legislation and guidance indetermining whether an organisation hasfulfilled its duty of care to the standardsthat could reasonably be expected in thecircumstances. The HSE and DfT haveboth emphasised that health and safetylaws apply to on-the-road work activities.Employers must take steps to assessthe associated risks, use all reasonablypracticable measures to make journeyssafe, and ensure their employees are fitand competent to drive safely and thattheir vehicles are fit for purpose andmaintained in a safe condition.

THE BUSINESS CASEThe benefits of properly managingan organisation’s vehicles and driverscan be considerable, extending wellbeyond the health and safety and socialconsequences of serious road accidents.From a commercial perspective, bettercontrol over fleets and drivers often resultsin improvements in wear and tear, fuelconsumption, insurance premiums, legalfees and claims costs, to name but a few.

DRIVING COMMITMENTQBE encourages and supportsorganisations who develop their ownbespoke business case arguments foraction, i.e. moral, legal and financial.Addressing the challenge ofoccupational road risk requirescommitment from the top down andclearly defined responsibilities. Alsoessential is an integrated organisationalsupport structure and managementsystem that allows cooperation acrossall departments with some responsibilityfor work-related road safety. In otherwords, functions such as riskmanagement, fleet, insurance, training,and health and safety must operateoutside their traditional silos to pursue ajoined-up strategy.

A RISK MANAGEMENTAPPROACH

A one-size-fits-all approach will clearlynot work when it comes to managingoccupational road risk. The first stepis to set company policy and formulatea risk management strategy that definesroles, responsibilities and timelines foraction. This strategy should incorporatethe aims and objectives of the policyor mission statement and includerealistic and measurable KPIs. Theseneed not necessarily all be safety related,but could include aspirations ofstakeholders within other business

functions, e.g. reducing the frequencyand cost of accidents and claims,making fuel and vehicle efficiencysavings, improving absence andattendance levels, or even reducingthe organisation’s carbon footprint!

The next step is to identify each pointat which the organisation’s operationscreate an exposure to occupationalroad risk. Having done this, it becomespossible to consider, at a very strategiclevel, the risk-based arguments foreliminating, substituting, reducingor controlling these exposures. Theresidual risks should then be assessedand documented.

The process is essentially no differentfrom that relating to any other workactivity, as shown below:

With the ever-growing potential forcivil claims and criminal enforcement,employers and senior managers needto demonstrate that the systems theyhave in place are effectively managed,enforced, in line with best practice, andcommensurate with the level of risk.

Identify significant hazards and those who

may be at risk

Assess the likelihood andpotential severity of injury

and loss

A

Monitor and review the effectiveness of policies,systems and controls at

appropriate intervals

Determine and implement control measures to

reduce risks as far asreasonably practicable and

economically viable

IDENTIFICATION OFHAZARD AND RISKThe need for driving at work can arise ina number of different ways: from one ortwo employees using their own cars onad-hoc company business, to majorlogistics firms operating huge fleets.Employees particularly at risk includeyoung and newly qualified drivers, driversof large or specialist vehicles, thosedriving long distances, and those withcomplex or difficult routes.

When an organisation is analysingaccident frequency and severityand benchmarking against similarorganisations, fleet managers, motorinsurers and brokers can all providevaluable data. Identifying systemic androot-cause failings from accident andclaims investigations is also important.Insurers and brokers of larger fleetswill often be willing to facilitate suchclaims reviews.

Although not specifically required byRIDDOR, recording and monitoringvehicle accident and near missfrequency can also help to highlighttrends and hot spots, e.g. vulnerableor accident-prone drivers, accident blackspots, and susceptible vehicle types.Consulting with drivers themselvescaptures their first-hand practicalexperience and helps make themmore receptive to reporting adverseoccurrences and adopting futurechanges in policies and procedures.

It is also important to review anycase law and proposed legislationthat may affect claims or criminallaw enforcement, i.e. changes in thecourts’ interpretation of the minimumstandard of care required wherework-related driving is concerned.

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TheDriver

TheVehicle

TheJourney

EVALUATING RISKOnce higher order controls have been exhausted, there are three main areasto consider in evaluating residual work-related road risks:

The driverCommon sense has a major role to playwhen evaluating drivers’ competenceand likely performance on the road. Forexample, all motor insurance proposalforms ask:

• Does the driver hold a valid licence forthe relevant class of vehicle?

• What driving experience do they have?

• Do they have any history of speedingor other traffic law infringements?

• What is their historical accidentexperience?

The answers to these questions willhelp determine what level of risk adriver poses. Though specialist riskassessment software is available, anorganisation must ultimately rely onits own judgement as to whether aparticular driver is low or high risk.

Clearly, drivers should be made aware ofcompany policies and systems of workon road safety. Employers should be ableto provide documentary evidence thatemployees understand what is expected

of them and have the necessaryskills and expertise to meet theseexpectations. Such records will becomevitally important should future civil orcriminal proceedings involve allegationsof insufficient training or enforcement.

Training requirements vary widely,and off-the-shelf training packages areunlikely to provide a complete solution.Employers with a significant driverpopulation should consider creatingtraining matrices detailing the specificrequirements that apply to their driversand vehicles. A bespoke trainingprogramme can then be developed –either in house or working with a suitablespecialist provider.

For most organisations, however, somebasic induction training covering the law,routine safety checks, maintenancearrangements, emergency proceduresand the organisation’s driving safety rulesprovides a useful starting point.

This could usefully be supplemented bya driver’s handbook outlining companypolicies and providing general adviceand information on road safety.

The vehicleThe Provision and Use of WorkEquipment Regulations 1998 (PUWER)require employers to prevent or controlrisks to their employees’ health andsafety from equipment – motor vehiclesincluded – used at work. Liftingequipment is also subject to specificrequirements under the LiftingOperations and Lifting EquipmentRegulations 1998.

The starting point here is to considerwhether vehicles are fit for the purposefor which they are used. Fleet,purchasing, and health and safetydepartments should all take account ofrisk-based criteria when sourcing new orreplacement vehicles. It may even provecost-effective to lease or hire vehicleswith maintenance and repair outsourcedto a vetted supplier.

Employers often fail to give properconsideration to privately ownedvehicles, but it is important to ensurethat both driver and vehicle are insuredfor business use and that the latter hasa valid MOT certificate.

Policy documents and training shouldcover general maintenance, servicing,and repair arrangements to at least withthe same standard as themanufacturers’ instructions. Drivertraining should cover basic safetychecks – potentially supplemented by asystem of pre-use checks and periodicongoing checks. This might, forexample, cover tyres, lights, wiperblades and safety equipment such asseatbelts and head restraints. Driversshould also have access to informationon issues such as recommended tyrepressures, maximum load weights

(including headlamp beam adjustmentto compensate for different loads) andhow to adjust head restraints to reducethe risk of whiplash.

There should also be a robust reportingmechanism in place through whichdrivers can notify managers both ofnear misses and of any vehicles in apotentially unsafe condition. Employersmust then close the loop by taking anddocumenting appropriate action.

Satellite navigation systems equippedwith helpful safety and warning featurescan also play a valuable role, particularlywhere routes are variable. Suchequipment can, however, prove distractingor lead to complacency – risks which alsorequire consideration. Drivers shouldalways be trained in the safe use andthe limitations of any such equipment.

The journeyRoute planning should form part ofthe risk assessment. Motorways, forexample, are statistically safer thanminor roads. Depending on vehicle type,planning should also take account ofspecial hazards such as peak trafficflows, bridges, narrow roads and drivingin town.

To reduce sleep-related accidents, workschedules and shifts should be aligned asfar as possible with natural sleep patterns.It is also important to encourage a culturein which employees feel able to pull overif necessary, regardless of delivery oroperational demands.

CONTROL MEASURESThere are many ways of reducing occupational driving risk. A common mistake is tofocus primarily on lower order controls affecting vehicle and driver safety. The firstpriority should be higher order controls, along the lines of the principles endorsed inSchedule 1 of the Management of Health and Safety at Work Regulations:

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• Consider outsourcing drivingoperations

• Eliminate or minimise driving riskby encouraging telephony andvideoconferencing

• Encourage safer forms of travelsuch as air and rail

• Ensure company car policies donot encourage employees to drive,rather than seek safer alternative formsof travel, or to select inappropriatevehicles

• Ensure delivery targets and incentivesdo not inadvertently encourage driversto drive too fast or for longer hoursthan is reasonable

• Select vehicles preferably witha planned maintenance/serviceprogramme in place

• Prioritise the purchase/use of vehicleswith features designed to preventaccidents and to protect theirdrivers, occupants and third parties

• Consider at pre-employment stagewhether an individual’s safety recordmakes them a suitable candidate

• Apply similar standards to existingdrivers, i.e. invoking disciplinaryprocedures where drivers are at fault

• Introduce either blanket or risk-basedtraining whereby all drivers or, if budgetconstraints preclude this, all high-riskdrivers (including those using privatevehicles driven on company business)undertake driver-training that isspecifically tailored to the organisation’sand the individual’s vehicle use

• Develop a drivers’ handbook to includecompany policies and systems of work,stressing adherence to the HighwayCode, e.g. restrictions on mobile phoneuse, smoking in vehicles, drugs andalcohol testing policy, eyesight testingrequirements and any additionalprecautions or controls relevant to thespecific nature of either the employee’sduties or the vehicle itself

• Monitor, review and audit policies andprocedures regularly, treating breachesand non-compliance as with othersafety rules, with offenders visiblysubjected to established disciplinaryprocedures

• Consider the use of any relevantprotective clothing or safety devicesas the last line of defence

As with any other major organisationalchange initiative, effectivecommunication and consultation arevital. Senior and middle managers needto get out of their silos and deliver aneffective message by engaging with thepeople whose participation is ultimatelymost critical: the drivers.

SPOTLIGHT ONMOBILE PHONESThe use of handheld mobile phoneswhile driving, except in specifiedemergencies, has been prohibited sincethe Road Vehicles (Construction andUse) (Amendment) (No 4) Regulations2003 came into force on 1 December2003. The Road Safety Bill, given RoyalAssent on 8 November 2006, includesadditional provisions covering the useof mobile phones and other distractionsaffecting driver’s proper control oftheir vehicles. This legislation affectsemployers, making it an offence tocause or permit employees to usehandheld phones or other potentiallydistracting devices at the wheel.

It is important to make employeesaware of the risks of using mobilephones while driving and the criminalliability this risks causing. Employersshould adopt a clear policy on theuse of mobile phones and lookcarefully at their policy on the useof hands-free phones.

Best practice is to prohibit the use ofmobile phones and other distractionswhile driving except in a ‘genuine’emergency. Any breaches should besubject to disciplinary action. Employersshould ensure, not only that companypolicy is applied, but also thatemployees are aware of both theindividual and the wider consequencesof any failure to comply.

CONCLUSIONOccupational road risk has traditionallypassed under the radar for manyorganisations and not been seen asa major priority. However a combination offactors including recent developments incase law, the introduction of the CorporateManslaughter Act supplementing otherrelevant legislation, and pressure fromaction groups has conspired to push thetopic firmly up the agenda.

Looking beyond the negative motivationprovided by new legislative andenforcement measures, QBE wouldstrongly encourage organisations toconsider their own business case foraction. Those who adopt a pro-active risk-based approach to managing the specificchallenges of occupational road riskwill benefit in a far broader sense thansimply reducing the risk of prosecution.

Develop a bespoke business case for action

Deliver a strong statement of policy, a strategy, and KPIsfrom senior management

Introduce a process of consultation and engagement with the workforce

Identify organisational driving operations and exposures

Assess and evaluate residual risks and implementhigher order controls

Monitor, audit and review

Adopt risk-based initiatives to eliminate, substitute,reduce or control exposure

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BEST PRACTICE RISK MANAGEMENT APPROACH: QBE & RISKMANAGEMENTQBE’s Risk Management teams arededicated to providing our clients withpro-active risk management solutionsand thus helping to reduce claims costs.We provide expert advice on accident-prevention measures and work with ourclients to analyse their claims trends topromote effective, innovative andaffordable solutions based on bestpractice standards.

QBE is a corporate partner of Brake,the UK’s leading road safety charity.We have strong associations with riskmanagement providers in the motor fleetarena, and provide benefits and bestpractice advice to our motor fleet clientsvia our own innovative Risk ManagementEssentials programme.

QBE policyholders also benefit from theadded value of a series of initiatives andresource tools designed to highlight andeffectively manage road risk encounteredby fleet policyholders. This covers roadsafety, accident management, vehiclerecovery and active risk assessments.

For more information, visitwww.qbeeurope.com/motor/risk

and www.qbeeurope.com/casualty/risk-management

FURTHER READINGAs a starting point, QBE stronglyrecommends that employers consultDriving at Work: Managing work-relatedroad safety, the guidance documentreleased by the HSE and the DfT in2003. A raft of other information andguidance is available from organisationssuch as Brake, ROSPA, the RoadHaulage Association and the FreightTransport Association.

Useful links

• HSE: www.hse.gov.uk

• DfT: www.dft.gov.uk/drivingforwork

• Driver Standards Agency:www.dsa.gov.uk

• Driver & Vehicle Licensing Agency:www.dvla.gov.uk

• Vehicle & Operator Licensing Agency:www.vosa.gov.uk

• ROSPA: www.rospa.co.uk

• Brake: www.brake.co.uk

• Road Haulage Association:www.rha.net

• Freight Transport Association:www.fta.co.uk

• Roadsafe: www.roadsafe.com

AUTHOR BIOGRAPHYMark Black, Risk Manager

Mark joined QBE in 1998, servingsix years as a claims inspector beforejoining the Risk Management teamin 2004. He has 12 years’ insuranceindustry experience working with a rangeof major clients, and specialises inliability claims and risk management.

Mark holds an honours degree in RiskManagement and the Nebosh NationalDiploma in Occupational Health andSafety. He is a Graduate Member ofIOSH, a Member of the Institute of RiskManagement and of the InternationalInstitute of Risk & Safety Management.

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Readership of this Forum does not create an

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This Forum provides information about the law to

help you understand and manage risk within your

organisation. Legal information is not the same

as legal advice. This Forum does not purport to

provide a definitive statement of the law and is

not intended to replace, nor may it be relied

upon as a substitute for specific legal or other

professional advice.

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Dear reader Thank you for taking the trouble to read this publication.

QBE Risk Management believe that best practice organisations are those where senior individuals facilitate and engage in the processes of sensible risk management. We make this document available to all interest parties in an effort to share knowledge and promote good practise.

Our services are available only to clients insured by QBE in Europe. Our insurance products are sold through insurance brokers. We cannot offer advisory services to anyone else, however we would be delighted to hear if you have found this document useful or believe there are risk management issues that do not receive appropriate attention in the media.

Regards QBE Risk Management Team email: RM@uk.qbe.com www.QBEeurope.com/RM

Disclaimer This document has been produced by QBE Insurance (Europe) Limited (“QIEL”). QIEL is a company member of the QBE Insurance Group.

Readership of this Forum does not create an insurer-client, advisor-client, or other business or legal relationship.

This Forum provides information about the law to help you understand and manage risk within your organisation. Legal information is not the same as legal advice.

This Forum does not purport to provide a definitive statement of the law and is not intended to replace, nor may it be relied upon as a substitute for specific legal or other professional advice.

QIEL has acted in good faith to provide an accurate Forum. However, QIEL and the QBE Group do not make any warranties or representations of any kind about the contents of this Forum, the accuracy or timeliness of its contents, or the information or explanations (if any) given.

QIEL and the QBE Group do not have any duty to you, whether in contract, tort, under statute or otherwise with respect to or in connection with this Forum or the information contained within it. QIEL and the QBE Group have no obligation to update this report or any information contained within it.

To the fullest extent permitted by law, QIEL and the QBE Group disclaim any responsibility or liability for any loss or damage suffered or cost incurred by you or by any other person arising out of or in connection with your or any other person’s reliance on this Report or on the information contained within it and for any omissions or inaccuracies.