22 March 2013
Business Crime Solicitor Craig McAdam on the role of Health and Safety in investigations
I recently attended a presentation by Maria O’Malley at the Manchester Occupational Health and Safety Group meeting in January 2013 where we were presented with some thought provoking statistics relating to road traffic accidents. For example; a third of all road traffic accidents involve someone who is driving for work, resulting in an excess of 1000 fatalities and 13,000 serious injuries per year.
This compared to workplace fatalities of 171 for the years 2010 – 2011, to my mind highlights one of the greatest risks for employees in the UK. The survey conducted by Maria tries to find some causes for work road traffic accidents and discovers that out of the sample surveyed only two thirds of large organisations informed employees of their driving related policies and only a quarter had received some form of training. Worryingly 36% of those surveyed felt obliged to take risks while driving due to pressures of work, fatigue, speeding, traffic addition and adverse weather.
If these findings were discovered for people working at height or driving fork lifts you can imagine the response from the Health and Safety Executive.
Health and Safety Legislation does not stop when employees leave work premises. The general duties of employers to their employees continues throughout the employees work duties and the duty to ensure an appropriate general policy with respect of the Health and Safety at work applies and should be brought to the notice of all employees.
If reasons such as tiredness, pressure, using mobile phones are the cause of road traffic accidents where third parties are injured then there may also be breaches of the general duty of employers and self employed to persons other than their employees, Health and Safety legislation is therefore capable of being applied ‘on the road’.
The HSE’s policy and enforcement of Health and Safety in relation to work related traffic accidents is that legislation need not be enforced where public and worker safety is adequately protected by more specific and detailed laws enforced by another authority. In the cases of road traffic, those authorities are the Police and the Vehicle Operation Safety Agency. However, Police investigating a road traffic accident will focus on the cause of the incident and the individual concerned, not on health and safety policies and management regulation so enforcement of road traffic policies often fall under the radar. There are obvious instances where that may change.
In cases of fatalities on the road, if some of the factors highlighted in the presentation were contributory to a fatality then the Police will investigate and may well determine at an early stage the pressures of work use of mobile phone and tiredness necessitates the expansion of the investigation from one of careless or dangerous driving to one of potentially corporate manslaughter, and in those instances, it is foreseeable that the Health and Safety Executive would become involved in examining the company’s policies and work procedures to determine whether there has been a structural failure which has led to the fatality of an employee or member of the public.
It cannot therefore be stressed enough that employees using fleet vehicles or their own private cars should be treated the same way as employees using machinery on site so far as risk assessments and method statements are concerned.
The above instances are obvious examples of how the Health and Safety Executive could enforce Health and Safety legislation on the highway however it not need be so dramatic. If an employee is pulled over for having swerved across lanes due to tiredness the Police may establish the same contributory factors and the individual will be prosecuted. It is still open to the Police or Crown Prosecution Service to prosecute employees for having caused or committed the offence in either aiding, abetting or procuring the commission of an offence this can happen in many circumstances, for example; if journeys are scheduled to be completed in a specific time which would result in the employee speeding.
For any further information or advice in relation to any of these subjects please call Business Crime Solicitor Craig McAdam.
Read more about HSE Investigations.