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Essential Duty of Care: The Law

As an employer, you have duties under the Road Traffic Act and Road Vehicle (Construction and Use) regulations. These laws are administered by the police and other agencies e.g. DVLA. Health and Safety guidelines and laws are additions to such laws.

At the time of writing, the HSE are at pains to point out that their document ’Driving at Work: Managing Work-Related Road Safety’ is simply a set of guidelines, which are not enforceable by law. However, we would recommend that they are regarded as a benchmark. We believe that is how the courts will treat them.

It would appear that the Government is committed to the introduction of new corporate manslaughter laws. This could mean that senior company executives will be brought to court for failing in their duty of care, should a serious incident occur in a vehicle which is being used for company business.

The Health and Safety at Work Act 1974 requires employers to ensure, so far as is reasonably practicable, the health and safety of all employees while at work. It is also your responsibility to ensure that others are not put at risk by work related activities.

Under the Management of Health and Safety at Work Regulations 1999, you have a responsibility to manage health and safety effectively.

Health and safety law does not apply to commuting. However the new HSE guidelines do extend company responsibility to ensure the safety of journeys to and from work, even though such trips are not counted under the Working Time Directive, nor are they eligible for allowable business expenses under Inland Revenue rules.

Particular features of road traffic and employment law which need to be borne in mind include:

  • all drivers must hold a valid driving licence
  • drivers who lose their licence may not be dismissed unless the possession of a valid driving licence is specifically mentioned in the employee’s contract of employment
  • employers and employees could face prosecution if they colluded in allowing the employee to drive when they were disqualified
  • it could be an offence for an organisation to set its drivers unrealistic time schedules, which result in them breaking speed limits
  • if could also be an offence to have payment or rewards systems in place which effectively turn a journey into a race
  • it could be an offence for an organisation to require or permit an employee to drive a vehicle which was in an un-roadworthy condition
  • vehicles must be taxed, and where appropriate, have a valid test certificate
  • drivers must be insured for social and business use (employees need to have cover when using their own vehicles for work purposes)
  • there is a clear requirement for drivers involved in accidents to exchange names, addresses and insurance details and to report such details to the police within 24 hours, where there is an injury to any party

 

The Law Key Points
Developing Duty of Care Driver Training
Car Checks Speeding
Private Cars Mobile Phones
Risk Assessment Sources of Information

Essential Duty of Care: Mobile Phones

Since December 2003 it has been illegal to use a hand-held mobile phone while driving. If you are caught using a mobile phone, you risk a fixed penalty of £30, or a fine of up to £1,000, if the case goes to court.

It is also the Government’s intention to raise the fine to £60 and to make it an endorsable offence resulting in 3 penalty points. These changes will be implemented as soon as ‘a suitable legislative opportunity arises’.

It is also an offence to use a mobile phone while supervising a driver who only has a provisional licence.

A hand-held mobile phone is defined as ‘a mobile telephone or other device which is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function’.

A person is ‘driving’ if a vehicle is stationary but the engine is running, or the vehicle is being driven.

As far as employers are concerned, the law includes an offence of ‘causing or permitting’ a driver to use a hand-held phone while driving. This means that employers can be found guilty of an offence if they permit staff who drive for work to use a hand-held mobile phone while driving.

RoSPA’s view is that the use of mobile phones while driving should be banned completely. The Government appear to accept that using a mobile phone, even with a hands-free kit, distracts the driver and increases the risk of an accident.

Consequently, RoSPA considers that employers would be unwise to simply respond to this new legislation by issuing staff with hands-free kits. Even if the use of a hands-free kit while driving does not contravene the specific legislation covering the use of hand-held mobile phones, employers could fall foul of health and safety laws if an investigation finds that the use of a phone contributed to an accident.

RoSPA recommends that employers introduce a policy along the following lines:

You must not make or receive a call on a mobile phone (whether hands held or hands free) as the driver of a vehicle unless it is parked in a safe place with the engine switched off. No line manager shall require an employee to receive a call on a mobile phone while driving. Contravention of these requirements will be regarded as a serious disciplinary matter.

 

The Law Key Points
Developing Duty of Care Driver Training
Car Checks Speeding
Private Cars Mobile Phones
Risk Assessment Sources of Information