Legal Spotlight - June/July 2020

REGULATORS ARE increasingly examining employer's welfare management practices and their response to associated safety risks for both its employees and the general public. Employers must remember that drivers' welfare and workloads should be carefully managed; failure to do so can have catastrophic personal consequences but may also lead to the prosecution and conviction of employers found to have been at fault. 

The recent conviction of an employer following the death of two employees as a result of a road accident caused by driver fatigue, demonstrates safety regulators' determination to ensure that employers take a holistic approach to their obligations in relation to health, safety and wellbeing, with each being properly considered in risk assessments and suitable provision put in place to mitigate potential areas of difficulty. Where an employee driver is involved in an incident on the road, supervision and the enforcement of fatigue management policies are now more likely to be scrutinised by safety regulators, even where, on face value, this relates to careless driving.

In the first prosecution of its kind by a UK health and safety regulator Renown Consultants Ltd (Renown) was prosecuted and convicted for a specific failure to assess and manage workplace fatigue and for a failure to enforce its own fatigue policies. The prosecution arose out a fatal car accident, caused when an employee driver fell asleep whilst driving. The driver, a trainee welder, was found to have exceeded the working time limits for safety critical work and the limits articulated in Renown's policies.

While fatigue may have been a factor in poor safety management in other prosecutions, in those cases there have been other more obvious operational failures by defendants (i.e. failure to manage employee competence or unsafe systems of work), with most enforcement in relation to fatigue tended to be by bodies such as the DVSA where drivers have exceeded permissible hours under the respective EU or UK regimes. In 2019, for example, Midland Red was convicted (and fined £2.3million) for failing to take reasonable care for the health and safety of its workers and others contrary to sections 2 and 3 of the Health and Safety at Work etc Act 1974 (HSWA) for not acting on substantive concerns regarding the health, fitness and ongoing capability of a driver, who, despite warnings, was permitted to continue driving. The driver, also convicted for a driving offence, fatally killed a passer-by and a passenger.

Where fatalities or serious incidents have occurred affecting or affected by those driving for work (operational road risk), such issues have generally been investigated and dealt with by the Police as road traffic matters. Renown's prosecution therefore represents an unusual step for a workplace regulator (here the Office for Road and Rail) to identify and isolate failures by the employer in respect of welfare management in this way, with the successful prosecution likely to lead to increased scrutiny by such regulators in future. 

Not only is the regulator's approach here novel, it may also be an indication that workplace safety regulators will take a more involved approach to incidents on public roads featuring corporate failures linked to the organisation's wider 'undertaking'; there is already evidence of a greater use of Improvement Notices in specific welfare issues, such as the failure to manage both fatigue and stress in both the oil and gas sector and the healthcare sector respectively. 

Now more than ever it is imperative that workplace fatigue is appropriately managed. Whilst specific industry regulators are understanding of the need to take a more flexible approach during the Covid-19 pandemic crises, safety regulators have made it abundantly clear that the welfare and specifically the fatigue of key workers must be appropriately managed. 

This is an especially important point for employers to be aware of during the COVID-19 crisis where, due to the closure of hotels and other facilities, employees are increasing both their working day and their driving times to and from work. It is important that employers appropriately assess this elevated risk and introduce controls to manage it appropriately.

While the Renown case specifically featured a road risk issue, the prosecution and the nature of it is significant as it tells us that even in circumstances where employees are competent and operationally the systems of work are safe, where there are failures in respect of what would be considered as management of ‘welfare’ issues – such as fatigue, general wellbeing, mental health – this leaves the door open for charges to be laid (s.2, s.3 HSWA) in respect of those failures alone. 

Notwithstanding the current crisis, there will certainly be a piqued interest and enforcement appetite by regulators with respect to welfare issues when the country returns to business as usual. Enforcement is likely to be concentrated in areas where employees are carrying out safety critical operations, where human error can have significant consequences and where there is sector specific guidance on the management of fatigue.  In the context of all workplace incidents, where an incident arises from employee error in the context of otherwise exemplary health and safety management by an employer; it is imperative that any defence is not undermined by any failure to properly manage employee welfare – which may have caused or contributed to an incident. 

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com