The Lorry Lawyer: DWF keeping you moving forward

Driver fatigue

Think ‘workplace safety’ and few will include road risk for employees driving for work purposes in their key business risks. But with Traffic Commissioners more than willing to revoke drivers’ vocational licences and impose sanctions on businesses for failing to adequately address the risk from driver fatigue, Vikki Woodfine, Senior Transport Solicitor from specialist law firm DWF LLP, explains the relevant legal requirements for businesses operating vehicles under a good vehicle operator’s licence and how a safety manager’s ignorance to the law on drivers’ hours could have dire consequences for employers and drivers alike.

Compliance with the rules on drivers’ hours (which set out how long drivers can drive for and must rest for when driving vehicles over 3.5 tonnes) should not be seen as solely a fleet issue to be dealt with by the Transport Manager (or equivalent). Driver fatigue is a clear risk area for businesses and is an area that could be greatly improved with input from health and safety managers.

Drivers’ Hours Legislation

Generally, transport businesses recognise that fatigue is a risk for their business. What might automatically come to mind when fatigue is mentioned is the issue of drivers’ hours rules and the requirement for businesses to comply with those rules is well known.

Most vehicles used for the carriage of goods by road in the EU weighing over 3.5 tonnes fall within the EU rules on drivers’ hours.  The obligations imposed by the EU rules (Regulation (EC) 561/2006) on businesses and drivers are complex, however, a very brief summary of the key obligations include:

Breaks A break of no less than 45 minutes must be taken after no more than 4.5 hours of driving. The break can be divided into two periods – the first at least 15 minutes long and the second at least 30 minutes – taken over the 4.5 hours.
Daily driving Maximum of 9 hours, extendable to 10 hours no more than twice a week.
Weekly driving Maximum of 56 hours.
Two weekly driving Maximum of 90 hours in any two-week period.
Daily rest Minimum of 11 hours, which can be reduced to a minimum of 9 hours no more than three times between weekly rests.
Weekly rest A regular weekly rest of at least 45 hours, or a reduced weekly rest of at least 24 hours, must be started no later than the end of six consecutive 24-hour periods from the end of the last weekly rest. In any two consecutive weeks a driver must have at least two weekly rests – one of which must be at least 45 hours long.

*Summary taken from VOSA Guidance: ‘Rules on Drivers’ Hours and Tachographs: Goods vehicles in GB and Europe’

Recording driver’s hours

Clearly, when driving a large goods vehicle under an operator licence, this driving (and other activity) must be recorded. Records are kept through a vehicle’s tachograph recording equipment.

All commercial vehicles over 3.5 tonnes first registered on or after 1 May 2006 must be fitted with digital tachographs that record how long drivers have worked, over what distances, at what speed and with what breaks. However, operators can continue to operate an analogue tachograph in any vehicle registered before that date. As a result of the introduction of digital tachographs, it has become far easier for the police and VOSA to detect drivers’ hours infringements. There were 19,434 drivers’ hours prohibitions issued last year alone and this figure will surely increase as technology advances.

Indeed, a recent report adopted by the European Parliament Transport Committee on 31 May 2012 recommends that digital tachographs should have the added ability to monitor a driver’s record by using global navigation satellite systems. If the proposals are accepted, the devices, which could be mandatory by 2020, would also allow wireless transfer of data. This would enable traffic authorities to run remote checks and identify breaches without even stopping vehicles.

Driver’s hours and health & safety legislation

While businesses should continue to take their adherence to drivers’ hours rules seriously, managers do need to move away from the rigid thinking that their obligations are limited to VOSA issues and everything is acceptable if drivers’ hours are complied with. Fatigue can extend beyond this and other factors may contribute to fatigue. What managers should consider is the possibility of coming under fire from the HSE or police on the issue of driver fatigue.

Beyond the risk of general transport and traffic charges, consideration should also be given to the impact of a health and safety or a corporate manslaughter conviction that could result from an accident involving a driver that was over his legal hours. If found guilty of breaching safety laws, companies could face unlimited fines, significant disruption to their business and untold reputational damage.

Imagine the scenario that one of your vehicles is involved in a road traffic accident. Rather than the police simply focusing on traffic matters (where there was evidence of dangerous/careless driving for example) and liability being addressed from a civil perspective, what if the HSE and VOSA become involved? If, on investigation, VOSA uncovered systematic drivers’ hours infringements and a failure to address this risk area, or neglect on this point, suddenly you can see the HSE becoming interested in the accident too. Very quickly a road traffic accident could spiral into a multi-agency investigation where corporate manslaughter (if there was a fatality) or health and safety offences are considered.

Protecting against fatigue goes beyond rigid compliance with drivers’ hours legislation, but it is ultimately a very important issue of driver and public safety.  In 2010, there were 7,103 accidents involving at least one HGV, with 9,686 casualties.

HSE statistics show that the occurrence of general workplace accidents has been found to be higher on night shifts, after a succession of shifts, when shifts are long and when inadequate breaks are taken.

Finally, statistics released on 18 July 2012 show that the number of people killed on Britain’s roads has increased for the first time since 2003. The year 2010-2011 saw 1901 people killed on Britain’s roads. So, if you look at the statistics together, you can quickly appreciate the concern of having over-worked drivers working during unsocial hours driving a large, heavy vehicle.

Should a serious fatal accident occur which reveals that regular breaches of drivers’ hours rules were known, condoned or encouraged by a business, the HSE can be expected to consider the role the business played in the accident (or indeed the police potentially if there has been a fatality). The Health and Safety at Work etc. Act 1974 requires employers to ensure, so far as is reasonably practicable, the health, safety and welfare of employees. There is a further duty to ensure, so far is reasonably practicable, that non-employees are not exposed to risks as a result of its work activity. However, an employer will not be found guilty of these offences if it can show that it took all reasonable steps to prevent exposure to the risk of harm. Similarly with drivers’ hours offences, while an employer can be found liable for breaches of drivers’ hours rules committed by its drivers, it won’t be held liable if it can show that all reasonable steps and due diligence had been taken to avoid the rules being broken.

Businesses should therefore recognise the benefits that can be gained from the transport and safety managers combining forces to ensure the business has systems and procedures in place to deal with driver fatigue. This forward planning is what could ultimately provide a defence under both drivers’ hours and health and safety legislation.

If driver fatigue is a causative factor in an accident then the operator’s licence compliance history will be assessed to ascertain if more serious systemic failures can be identified. Employers would have to demonstrate that their drivers’ work is properly organised, the drivers are properly instructed and that regular checks are made on drivers’ compliance with drivers’ hours rules through infringement reports and audits.

Tachographs should be analysed and infringement reports should be compiled. Even the minor infringements should be closely monitored. This analysis might help to bring to light inherent problems within the business. Non-compliant drivers should be asked why they are struggling to work within hours’ limits, particularly if they are repeat offenders. It may emerge that drivers are being put under too much time pressure or perhaps that they need more training on the drivers’ hours rules. While the smallest issues may be missed on weekly infringement reviews, if reports are looked back upon, there may be repeat problems that have to be addressed.

We have seen through the release of the recent guidance in relation to load security, which is the result of a joint initiative by the HSE and VOSA, that the two authorities are looking to combine forces in their fight for road safety. If that initiative is successful, we might well see more joint efforts by VOSA and HSE in an attempt to stamp out bad practice. The issue of driver fatigue could well be one that becomes under the combined focus of VOSA, HSE and even the police working together to secure convictions against companies and individuals following work related road accidents.

The role of the managers

As has been discussed, driver fatigue and breaches of drivers’ hours legislation can leave a business significantly exposed. Businesses are advised to recognise that cooperation and coordination between transport and safety managers can be key to reducing the hazard of fatigue and consequently reducing the exposure of a business to prosecution.

Employers that operate vehicles under standard operator licences might automatically consider that the responsibility for ensuring compliance with drivers’ hours rules rests squarely with the Transport Manager. Yet fatigue is a risk that needs to be managed, like any other hazard, and which should be equally the concern of the Health and Safety Manager; not instead of the Transport Manager, but in addition to them.

Transport Managers and Health and Safety Managers should look to how the police, VOSA and HSE are beginning to work together; they are beginning to understand the benefits that can be gained pooling their shared knowledge to address road safety.

With the police now looking to prosecute more companies for corporate manslaughter, the actions (or inaction) of the senior management, including transport and safety managers, could result in the company being convicted of one of the most serious criminal offences a company can commit. More worryingly for safety managers and transport managers personally is the increased occurrence of prosecutions against individuals following workplace accidents. As a conviction of an individual for health and safety offences can carry the penalty of imprisonment, transport and health and safety managers both need to think seriously about investing the time in their systems and procedures to deal with driver fatigue. The risks to the driver and third parties if a driver is allowed to drive while fatigued are well known and obvious and it would be difficult for either manager to argue otherwise in court.

The benefits to be gained by the transport and safety managers combining forces should not be underestimated. The issue of fatigue is increasingly recognised by regulators and when one considers how huge the implications for convicted businesses can be, the managers should take time to put their heads together to consider how they can reduce their level of exposure by ensuring the business meets both its operating responsibilities and its health and safety obligations in this area.

Importance of managing working hours

Sooner or later it is likely that the dots will join together between the work of VOSA, Police and the HSE.  When that does occur, many more serious accidents involving working drivers are likely to be followed by thorough joint investigations aimed at instigating prosecutions against companies and individuals for serious health and safety offences.

If a business or its managers turn a blind eye to infringements or simply fail to address and monitor this area then they are ignoring their responsibilities under both the terms of their operator licence and health and safety legislation. The issue should therefore be one of concern for the Transport Manager and his health and safety counterpart and through effective co-operation and co-ordination the business, its drivers and the public will be better protected. Also, it cannot be forgotten that the business and its operators’ licence will also be in the strongest position moving forward if communication and collaboration is encouraged between relevant employees.

© 2012-2013 DWF LLP