Legal Q&A: Driving hazards

From April 2008, the new Corporate Manslaughter and Corporate Homicide Act 2007 will come into force. The Act reflects what appears to be the public’s view, that companies and managers should be held more directly responsible for their employees’ negligent actions. Traditionally, employers have only really had to ensure that health and safety requirements are adequately adhered to ‘in the workplace’, but this new Act takes their obligation much further.

With reports that up to 33% of all road fatalities may be work-related, employers should take note that they will be directly responsible for their employees’ actions while they are on company business off the premises.

Q If employees do not have company cars, should we still be concerned?

A Company vehicles do not just include those provided by their employer, but also cover the employee’s own vehicle when used for work purposes. Therefore, if an employee is using their own car to undertake company business – such as driving to meetings or going out for supplies – and is convicted of a motoring offence, then the company may be held responsible.

Employers must take responsibility to ensure privately owned vehicles used for company business are adequately insured for business use, are roadworthy, and that the employee has a valid driving licence. There must be an administrative paper trail to demonstrate that these checks have been carried out and backed up with the necessary policies and training.

Q What are the implications if an employee is charged for driving while using a mobile phone when driving to a business meeting?

A Under new initiatives, police can request a meeting with a director of the employee’s company and ask to see relevant policies, risk assessments and documentary evidence of training and effective management. The employer’s compliance with health and safety legislation would come under direct scrutiny.

If an employer refuses or fails to co-operate, the sanctions include improvement notices and fines (up to £20,000 in the Magistrates Court and unlimited in the Crown Court), which can be imposed on both companies and managers, personally. The employer should ensure that their policies on driving at work are prominent, making it clear that any breach is a disciplinary offence, and support this with relevant training records.

Q What could be the implications if an employee fatally hits a pedestrian while driving back from a client meeting?

A The employer will be found guilty if, because of the grossly inadequate way the company’s activities are managed, it has caused a person’s death – for example, if the employee was driving for long hours either at the employer’s request, or where the employer has simply failed to monitor their driving hours. Sanctions can include unlimited fines and/or a Court Order to remedy the failings.

Perhaps the most damaging implication is the risk to company image, as employers can be required to publicise the offence in a manner specified by the Court. An employer that operates comprehensive driving-at-work policies, ensuring all staff are aware and trained, is more likely to successfully defend such action.

Q If an employee has an accident in a company car, but fails to tell the employer, what action can we take?

A Provided the employer has a clear accident-reporting policy, then disciplinary action can be taken under its normal disciplinary procedures. Depending on the seriousness of the situation, this could ultimately result in the employee’s dismissal. Where there is no policy in place, then disciplinary action could still be taken, but will be more difficult.

From April 2008, employers should not allow themselves to be in a situation where they do not have an appropriate policy under which to take such disciplinary action. The accident reporting policy must require the employee to provide details of the accident and co-operate with any resulting investigation. Administration can be undertaken through such methods as keeping an accident report card in the vehicle, although some large organisations operate call centres for drivers to report accidents immediately.

Q What other measures should we take?

A Once the administrative systems are set up (ie policies, accident reporting, training), then the key is for the employer to actively manage the data recorded. Depending on the level of data, a person or team should be allocated to take responsibility for regularly reviewing data and taking the necessary action, such as providing training for problem drivers, and ensuring vehicle check records are complete.

Demonstrating such effective and proactive management will bring additional benefits to the employer, such as reduced insurance premiums, and avoiding the time, cost and negative publicity in dealing with a high number of incident.

Vanessa James, partner and head of employment, SA Law

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