Road Transport and Logistics Briefing - Driving whilst fatigued

21 December 2016

Matthew Gowen recently attended a briefing in London where the new Chair of HSE, Martin Temple, spoke on a number of wide ranging issues.

Matthew Gowen recently attended a briefing in London where the new Chair of HSE, Martin Temple, spoke on a number of wide ranging issues – one of his key messages surrounded tackling ill health; one of the core areas of the HSE’s ‘Helping Great Britain Work Well’ strategy (1). The strategy advocates collective action to improve health outcomes for workers. Earlier prevention is clearly the key, as it is more cost effective and leads to better overall results.

What are employer’s duties in relation to employee health?

The HSE guidance – ‘Driving at work’ - makes clear that ‘Employers have duties under health and safety law for on-the-road work activities. The Health and Safety at Work etc. Act 1974 (HSW Act) states you must ensure, so far as reasonably practicable, the health and safety of all employees while at work. You must also ensure that others are not put at risk by your work-related driving activities. The self-employed have similar responsibilities’ (2) but how far does this extend to monitoring what employees do out of work which may have a detrimental impact on their health at work?

A representative from DVSA confirms that a large proportion of vehicle accidents are sleep related, specifically those on the motorways. He has said that when drivers are fatigued they have slower reactions and that their alertness and vigilance also deteriorates (3). Statistics show almost 20% of accidents on major roads are sleep-related and that about 40% of sleep-related accidents involve commercial vehicles (4).

It is well known that the current rules on drivers’ hours are strict in relation to rest periods but there are no obligations to record how much driving an employee driver is doing on a rest day or what activities they are undertaking; in reality this may impact significantly on driver’s alertness during the course of their work. Addressing employee fatigue could be critical for the smooth and safe running of your business.

How can this be addressed?

Whilst an employer should be careful not to intrude unnecessarily on the freedom an employee enjoys on their rest days, for example by conducting covert monitoring, there is much that can be done to raise awareness among drivers of the possible consequences of driving whilst tired, such as organising for them to attend driver health and well-being courses as part of maintaining their Driver CPC qualification. Guidance can also be given in the employer’s staff handbook to make clear the legal and physical importance of getting adequate rest.

It may also be possible to include a statement on the driver’s timesheet for them to sign, to confirm on a regular basis that they are adequately rested for the week in question, in addition to simply complying with the obligations under drivers’ hours rules. While this is unlikely to automatically absolve the employer of responsibility should an employee fail to do so in practice, it will at least serve as a useful reminder of the need to rest.

What is at stake for the employer and employee?

Driving whilst tired is considered an aggravating factor in both careless and dangerous driving cases. The maximum sentence an individual can receive for causing death by careless driving is three years imprisonment. In death caused by dangerous driving the maximum sentence is 14 years imprisonment. However these sentencing guidelines could potentially change as Ministers are seeking to extend causing death by dangerous driving sentences to include potential sentences of life imprisonment to put it in line with manslaughter (5).

It is also important to note that the employer could face a potential prosecution. For instance, if the company is aware that an employee is driving fatigued and it cannot demonstrate that it has done all that is reasonably practicable, the employer could face prosecution for breach of health and safety under s3 Health and Safety at Work Act etc. 1974 or The Management of Health and Safety at Work Regulations 1999. Equally, if the employer is aware that the employee is driving fatigued or sends him to work knowing he is fatigued he could also face a potential prosecution for aiding and abetting offences committed by the driver such as careless driving. Whilst this may seem farfetched, it may be worthwhile reviewing employee/driver wellbeing to ensure that they are indeed safe to drive. Aside from having a significant impact on the well-being of employers and employees, a prosecution is costly and time consuming and may attract unwelcome press attention.

It is therefore very important that employers ensure they are doing all that is practicable in ensuring their employees get adequate rest. HSE guidance suggests that employers have a plan, do, check, act approach to monitoring.
Rules on Drivers’ hours and tachographs – good vehicles in GB and Europe, Alistair Peoples, Vehicle and operator services agency (VOSA)

The content of this article is for general information only. For further information regarding driving whilst fatigued please contact Catherine Johnson. Law covered as at December 2016.