Fleet operations and the law
(Anthony Scrivener Q.C.)
Law says individual risk assessments for each company driver must be carried out - FDTA
Companies operating fleets of vehicles can no longer afford to adopt an "out of sight, out of mind" attitude towards their drivers, once they leave the car park. That’s the view of the Fleet Driver Training Association, which has sought clarification on the matter from two top legal experts, after the Government failed to make the position clear enough in its recent Road Safety Strategy.
A growing emphasis on the regulations governing work-place safety has made it essential for managers and directors who want to avoid the risk of prosecution, to carry out full risk assessments on each vehicle user, whether they're driving lorries, vans or company cars.
However no clear guidelines have been produced to help those in charge of fleets stay out of trouble. For this reason the Fleet Driver Training Association this week spoke to one of Britain's leading experts on employee safety legislation. Barrister Anthony Scrivener QC – to ease fleet managers’ uncertainty and help them see the road ahead more clearly.
Can a manager or director be prosecuted if the schedules he or she sets for drivers are too tight?
AS: If they are likely to affect the employee’s manner of driving and make him or her stay on the road for excessive hours, the answer is yes. In either case, if an accident did occur, it would have been foreseeable in the eyes of the law.
The firm can protect itself by being seen to set reasonable schedules and telling its drivers to take the required rest breaks etc. This area is of vital importance to any organisation, as law enforcement agencies such as the Health and Safety Executive, local authorities and the police, are waking up and starting to use the criminal law more.
The recent Bowles case, where two directors were found guilty of manslaughter after one of their lorry drivers fell asleep at the wheel, causing the deaths of two others, clearly illustrates this point.
How should we carry out risk assessments?
AS: If you want to be covered 100%, bring in an expert and do what he's said, even though this can be costly. Alternatively check with the Health and Safety Executive or get someone to do this on your behalf, such as a trade association - which could provide its members with a suitable model. Again you will be able to say "I have relied on a specialist in this field and have done what he suggests".
Is it better for this work to be carried out in-house or by outside consultants?
AS: If you have sufficient experience within the organisation, much of your risk management work can be done in-house. However many smaller companies operating fleets may not have this, in which case it would be better to use an outsider.
One of the problems of doing it all in-house, is that the fleet manager will have to criticise his own work. For this reason it may help a company of any size to bring use a consultant from whom valuable lessons can be learned, even if it’s only to check over the existing arrangements.
You must make sure that any risk assessment system is properly set up and reported to the main board so that the whole company knows about it and a safety culture begins to take root within the organisation.
Looking at one point of detail - should fleet managers check drivers' licences?
AS: Yes. As part of your duties, you should ensure drivers have the right kind of licence for the vehicle they're being asked to drive, or indeed that they have a licence at all.
You should behave in the same way a security firm should when it’s about to employ a new recruit, checking that they don't have serious convictions which might affect their suitability as an employee.
If potential drivers have one or two speeding convictions, you can use your judgement on whether that makes them unfit for using a company vehicle. However if he or she has 10 convictions, you may take a different view. At least you know what the score is and can take appropriate action. What you’re really out to do is corroborate what they tell you.
Should we insist on drivers reporting all accidents?
AS: This should be an essential part of any company’s on-going risk management policy. It will bring a number of benefits. For instance it will focus attention on any problems, such as particular types of accident which recur frequently.
It will also help to identify which drivers are bad risks, which will go a long way towards satisfying the authorities that you are doing all you can to assess the risks each one poses.
Moving from drivers to the vehicle themselves, how should we check that they’re safe to use on an on-going basis?
AS: Opinions are divided on this but some fleets have even adopted the PUWR '98 regulations, which involves drivers making a signed return each month saying they've carried out certain checks, such as tyre pressures and condition.
Would you recommend most organisations adopt such a procedure?
AS: To be absolutely correct in the eyes of the law, any organisation needs such a system. However once it's in place, it's essential to keep it up to date and comply with the regulations - otherwise you'll be producing evidence to hang yourself!
There must be regular spot checks on records and vehicles to ensure you are doing all the law expects of you. To give you an example, London Transport checks its escalators every 15 minutes. For this reason, to my knowledge, they have never lost a case involving escalators - even when one passenger lost all his fingers. This is because their procedures are so good that courts can see that they are doing all that is humanly possible to ensure passengers' safety while using escalators.
How should we maintain these records?
AS: Having set up the procedure, your records must be kept up to date. As I say, a system which isn't maintained can be worse than useless as incomplete records will only get you into worse trouble. In addition, I'd advise carrying out spot checks.
The main thing is to take in the information you're given and be seen to act on it. For instance a particular model of car might suffer more mechanical problems than others or be prone to excessive tyre wear, indicating that such vehicles need special attention to ensure they remain safe.
Released on behalf of FDTA
