Historically employers might have been forgiven for thinking that, save where conduct took place ‘in the course of employment’, what an employee or worker did outside of work was a matter for them.
The prosecution of an employer for failing to monitor employees’ working hours and the failure to take account of risk in circumstances that resulted in an employee falling asleep at the wheel of their vehicle on the way home from work may change that. That case must make employers very much more aware of a further potentially significant liability that they might have for what takes place outside and after work as well as what takes place during it.
In the case mentioned above, ‘Produce Connection’, the driver was involved in an accident whilst driving home following a third consecutive shift of nearly 20 hours. The case, thought to be the first of its kind in the UK, where a company in question was convicted even though their employee died outside working hours on their commute home is a stark reminder of an employer’s obligations under both ‘strict’ health and safety legislation but also under the Working Time Regulations, and, more broadly, the implied relationship between an employer and its employees and workers.
Under the Health and Safety at Work Act 1974 there is a duty – incumbent on any employer – to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees, and to make arrangements to promote and develop measures to ensure such health and safety at work.
What ‘Produce Connection’ does, though, is extend that duty and demonstrate the need for employers to think both carefully and proactively about the impact of driver fatigue, during both working hours on the commute home. With the Police and HSE increasingly jointly investigating accidents with a view to not including only the employee who was driving, but also the employer, in any subsequent prosecutions, company directors and other senior employers could find themselves in the dock facing not only large fines (and potentially unlimited) but also prison sentences following the increasing penalties under the Health and Safety (Offences) Act 2008.
Historically employers have not customarily accounted for issues such as fatigue in terms of policies or contractual documents. Principally, employers have taken the terms of the Working Time Regulations 1998 as guidance for the way in which they must conduct themselves with regard to working time.
Nonetheless, the Working Time Regulations themselves are primarily health and safety Regulations and as well as governing the maximum working week and entitlements to paid annual leave, deal with daily and weekly rest, night work risks assessments, and (given the recent Ainsworth – Stringer case) holiday pay and sickness absence.
Indeed, they do go further than this; for example, with regard to ‘mobile workers’ – any worker employed as a member of travelling of flying personnel by an undertaking which operates transport services for passengers or goods by road or air – there is an obligation to ensure that an individual received ‘adequate rest’. This means that a worker should have regular rest periods, the duration of which are sufficiently long and continuous to ensure that, as a result of fatigue or any other irregular working patterns, the work does not cause injury to himself, to fellow workers or to others and that he does not damage his health either in the short term or in the longer terms. Notably, the risk to health is not ‘work’ confined.
As is clear from the above, whilst there are broad obligations on all with regard to health and safety, the primary responsibilities and duties fall at the feet of the employer and accordingly the employer must protect itself. The principal issue must be appropriate risk assessments both in relation to employees and also each vehicle used in each journey undertaken. An employer also needs to set up policies relating to driving, making it clear that any breach constitutes a disciplinary offence as well as providing ongoing training backed up with the relevant training records.
Disciplinary procedures should be amended, and consideration given to ‘whistle blower lines’ for individuals to raise concerns without fear as to retaliation or retribution for raising such concerns, about both driving whilst tired or unfit in some other capacity or raising concerns about practises or procedures.
In practical terms the risk to an employer is high – in the case referred to above the company was ordered to pay a fine of £30,000 together with costs of £24,000 after admitting to breaches of Health and Safety law. Of course, though, there are the other significant risks both reputationally and commercially of both getting this wrong and failing to identify and deal with the risks.
Employers should already make sure they know if individuals are working elsewhere – for example if an individual has another job, say, working in a pub during the evening and finishing very late before coming to work. Usually this is considered though only for the 48 hour limit on the working week – it should, perhaps, be considered for fatigue purposes too.
In practical terms through there is a risk here and, as with any risk assessment, different facets of the role and the work should be identified, and steps taken, where possible to minimise or mitigate against them. The overriding principal of this case is that employers should periodically review driver fatigue both during “at work” driving and commuting and develop measures to guard against it.
Jeremy Scott is a Partner of the Regulatory and Corporate Defence Unit at Langleys Solicitors. Nick Sheppard is a Partner of the Employment Unit at Langleys Solicitors.
