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Your duty of care to drivers explained

  • 10 April 2014
  • By Justin Stanton

Operators owe a duty of care to their drivers in exactly the same way as other employer/employee relationships. If the operator breaches this duty and the driver suffers loss, injury or damage as a  result, then the operator is exposed to both civil and criminal liabilities, writes Andrew Woolfall, director of Backhouse Jones.

This could include having to pay compensation to the employee or facing prosecution for the breaches. The duty placed on employers comes from both case law and legislation and has developed over many years in a civil and criminal context. The civil law looks to compensate the injured party for the harm suffered, while the criminal law looks to punish the wrongdoer in terms of fines and even imprisonment.

Throw in the traffic commissioner’s role as regulator in charge of compliance with licence undertakings, and it can be seen that complying with the duty of care is one of the top priorities in a haulage business. The duty of care owed by an employer to its workers has developed over many years. In summary, it requires employers, so far as is reasonably practicable, to provide:

  • a safe place of work and access to it;
  • safe equipment and machinery including vehicles for use by staff, and;
  • a safe system of work.

The duty is fundamental to all areas of work and must always be borne in mind when looking at any aspect of operations including vehicles, their maintenance, how they are loaded, drivers’ hours and workloads, and general working conditions.

Employers must keep up to date with ongoing developments in their area of work, identifying risks posed to employees, and steps must then be taken to negate or minimise those risks.

These risks can be on a number of levels: they might cover how work is performed in general, the equipment that is used, the weather conditions each day or even developments in health-related issues, which are applicable to their employees.

The duty requires employers to be proactive in ensuring they look after employees. In short, operators must assess all activities and see whether the driver could suffer harm if something went wrong – the operator must then take all reasonably practicable steps to ensure that does not happen.

Specific responsibility
Operators cannot just set up a system and never review it against what is deemed to be best practice. Furthermore, they cannot fail to monitor staff to ensure the system is being complied with.

Also, operators cannot rely on drivers knowing what is the safest way to work or on the idea that the law may impose obligations on drivers to work safely. The duty of care owed by the employer is also a specific responsibility owed to every employee on an individual basis.

If an employee has a pre-existing condition making him/her particularly vulnerable to injury, the employer owes that employee a greater duty of care. The duty also extends to accessing individual capabilities in the workforce and ensuring that the work assigned to each employee is given on the basis of their individual capability.

In Johnstone v Bloomsbury Health Authority (1991), the employer was deemed to be liable when it failed to consider the health of a particular employee in assigning him excessive working hours. Despite the fact that the duty of care has evolved from
case law principles, the duty has been embellished and expanded by the introduction of an increasing amount of workplace-related legislation such as the Health and Safety at Work Act 1974, which employers must also adhere to. Section 2 of the act requires an employer to ensure “so far as is reasonably practicable the health, welfare and safety at work of all employees”.

To ensure compliance, there are a number of steps that operators can take including:

  • having risk assessments for the workplace and other activities done by drivers. These should be coupled with policies and practices adopted by the company setting out how work should be done. These should be created and monitored by a competent person who possesses adequate knowledge to ensure that the relevant risks are identified and managed;
  • educating and training employees to ensure they are sufficiently aware of the risks posed to them in the course of their employment and how they can avoid such risks. This requirement extends to agency drivers who should also be similarly trained and educated in the company’s health and safety procedures;
  • disciplining employees when they do not abide by the company’s health and safety policies and procedures.

However, the employer should keep the employees constantly informed of any updates or substantive changes to the risk assessments.

One incident arising from a breach of the duty of care can have numerous consequences. Firstly, there might be a criminal prosecution brought by the HSE or police, resulting in fines, imprisonment for key individuals or other penalties. There might also be a claim for compensation made by the injured person or his/her estate; drivers and others can bring a claim for damages if they suffer loss, injury or damage as a result of employer negligence.

Repercussions
Fines hit company turnover and profit and claims for compensation can alter insurance premiums. Furthermore, insurers expect operators to have some basic systems and procedures in place – if these are lacking or the operator’s breach goes beyond negligence, the insurer might claim the policy is void and leave the operator without any cover.

However, a prosecution or claim for injury-related compensation is not necessarily the end of the matter – an employment-related claim might follow. It might be said that the operator’s failure is a breach of the employment contract that it has with the driver: an employee can resign and claim constructive dismissal for a serious or fundamental breach of health and safety law by the employer.

An incident might also lead to the operator being called to appear before the TC for a public inquiry hearing in relation to its O-licence. Action against the licence might be justified based on a conviction being incurred or a breach of one of the  numerous undertakings that operators give in return for the licence being granted.

Operators must give a high priority to complying with the duty of care as it is fundamental to and underpins much of the work the business performs. A failure to comply with what is expected might mean there is no business left.

  • Andrew Woolfall is a director of Backhouse Jonesand a solicitor in the regulatory compliance department.Phone 0845 057 5111 or email andrew.woolfall@backhouses.co.uk
  • Commercial Motor’s Compliance and Best Practice Bulletin is sponsored by Tachodisc. To sign up to receive the monthly bulletin, go to the Compliance homepage.

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