Did you know that if an employee drives negligently or drives a defective vehicle whilst on company business then the employer could be liable for criminal or civil action, regardless of whether the employee is driving their own car, a company car or a hire car; read on for further guidance.
Under Section 87 (2) of the Road Traffic Act 1988, you are liable if you encourage or permit an employee to drive a vehicle of any class without the correct licence. The offence can carry a penalty of three points and a fine of up to £1,000. You can find the full text of the Road Traffic Act 1988 at the following location:
http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880052_en_4.htm
Additionally, employers are vulnerable to prosecution for offences ranging from corporate manslaughter to aiding and abetting in the event of a serious incident.
Scope of employer responsibilities
In general, employers should note that it is irrelevant who owns the vehicle. The legal test is whether the vehicle is used on company business.
Employers need to be aware that flexible benefits, car allowances and cash option schemes do not remove this employer liability, even though management may feel that they do not need to worry about cars employees are driving. If the employee is on company business then the liability remains. Indeed in such situations, managerial control is likely to be worse and the consequent risks higher.
In 2001 the Work Related Road Safety Task Group recommended to the government that existing Health & Safety laws be applied to all work related activities on the road and that employers manage road risk in the same way as they manage other occupational health and safety risks. Additionally, the group recommended that the Health and Safety Executive (HSE) should actively investigate road accidents and, if appropriate, prosecute employers.
Potential offences:
Under Section 87 (2) of the Road Traffic Act 1988, employers are liable if you encourage or permit an employee to drive a vehicle of any class without the correct licence. This liability falls onto the individual — usually the Company Secretary — rather than the company and the offence carries a penalty of three points and a fine of up to £1,000. The full text of the Road Traffic Act 1988 can be found at the following location:
http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880052_en_4.htm
A company can also be prosecuted for manslaughter committed in the course of its operations. Normally the charge would be of involuntary manslaughter by means of gross negligence. A death is regarded as being caused by the company if it is caused by “management failure”.
In order to convict a company of manslaughter it must be shown that a causal link existed between a grossly negligent act or omission by a person who is the “controlling mind” of the company and the immediate cause of death. The House of Lords confirmed in R v Adomoko that involuntary, gross negligence manslaughter could include ‘motor manslaughter’.
It has also been proposed that individual directors would be prosecuted and that holding and subsidiary companies could be included in the definition of the company, so that they too could not avoid prosecution.
What employers should do
Revise existing company car and driver management policies in relation to what types of vehicle can be used on company business, who is able to drive the vehicle, driving licence checks, vehicle checks, claims and accident reporting, safety instruction, driving tests, eye sight tests, vehicle risk assessments, driver risk assessments, route risk assessments, hours driven, rest breaks etc.
Drivers should be made aware of their responsibilities to ensure vehicle roadworthiness, to maintain correct documentation, and to advise the employer in the event of any material changes regarding the licence and health.
Amend the contract of employment and handbook accordingly and inform the workforce.
When recruiting a new employee and driving is part of the job requirement, then:
- Check a current driving licence is in force.
- Check the driving history – date of test, previous convictions, accident history, types of vehicles driven and under what circumstances.
- Request that any information be provided that may influence the individual’s ability to drive on company business.
- Consider objective assessments, driving tests, medical and eyesight tests.
When providing an employee with a vehicle ensure the driver is familiar with the vehicle controls and procedures, that the driver has read the driver handbook and understood its contents, check the driving licence and keep a copy on file.
Treat non-compliance by employees as a disciplinary issue and handle according to the usual disciplinary procedures. If the employer can demonstrate these steps and there is a fatal accident then the employer should be protected from charges of ‘gross recklessness or carelessness’.
Employers should check qualifications of all drivers on a regular basis, as the licence status can easily change. Furthermore, every employee who may drive on company business should be checked, regardless of whether or not the employee has a company car or receives a car allowance as part of their salary package.
Verifile can assist employers by conducting checks to verify whether the driver has a valid driving licence, any endorsements, disqualifications and periods thereof, the validity of large goods vehicles and passenger carrying vehicle driving entitlements as well as checking the driver’s identity. For more information go to www.verifile.co.uk
