First Published in Croner's Health and Safety Manager
PRIVATE VEHICLE - COMPANY BUSINESS
A discussion of the implications of the recent court case involving the Royal Mail for all organisations who allow employees to undertake work activities in their own vehicles. Firstly we discuss the practical implications and then the legal position.
Practical Implications
Background
Many organisations, either explicitly or implicitly, sanction the use by employees of private vehicles to carry out company business. This might range from a teacher taking pupils home from a football match in their car (or even allowing third-parties in the form of other parents to take children home) to sales-representatives travelling large distances to visit client's premises. In such cases, even though the car belongs to the employee it is being used to perform activities which are part of the organisation's undertaking and therefore it should come under organisational control- particularly with regard to health and safety aspects.
Practical Implications
Organisations need to adopt a systematic approach to this issue. Consideration needs to be given to the occasional users of private vehicles for work business as well as to those whose main activities involve the use of such vehicles. The member of staff taking a visitor to the company to the local station along with the pizza delivery worker. Obviously, control measures then need to prioritise those at greatest risk. The following checklist may prove a helpful starting point:
o Identify the hazard
considering those
who use private vehicles on an occasional
and one-off basis as well as the regular
user (sales-staff, staff who visit third-
party premises, those who collect and
deliver goods and materials, administrative
staff dropping off mail at the post office
etc)
o Assess the risks to the staff identified
taking into account frequency (how often
they use private vehicles in this way),
duration (for how long they use them),
possible severity of injury (given the
type of vehicle and the use to which it
is being made) and extent (the number
of people likely to be involved if an
accident should occur)
o Introduce the controls
where these are
deemed necessary given the level of
risk assessed and the effectiveness
of the existing controls. Such controls
should include the introduction of
procedures to govern:
o The suitability and road worthiness
of the vehicle both in general terms
and in relation to the specific task
it is to perform
o The competence of the driver and
their qualification to drive that
particular vehicle
o The existence of appropriate and
adequate insurance cover for the
particular vehicle and driver
o Monitor the effectiveness of the controls
which may involve looking for reductions
in accidents and near misses, this can only
be effective if accidents and near misses to
private cars undertaking company business
are at present being recorded. Unless such
a recording scheme is in place, it will be
difficult to estimate the scale of the
problem or, in fact, to identify whether
or not a problem exists at all
o Evaluate and Review
whether the control
of the use of private cars for company
business is now subject to effective
management control
In summary it should be stressed that effective control needs to consider: The Driver, The Vehicle and The Activity being undertaken.
Driver Training
Obviously for many activities (such as a member of staff using their own vehicle to drive half-a-mile down the road to purchase a ream of A4 paper out of the petty cash), the fact that the driver has a valid licence and appropriate insurance (that covers a certain amount of work activity as well as social and domestic use) will be enough. However; members of staff who use private vehicles for company business to a large extent, may require additional training. Such training will not only protect their health and safety, but also protect an important human resource in the organisation. (A similar argument applies with regard to employees who use company vehicles).
Again, the approach adopted towards driver training should be driven by the risk. Where the level of risk is assessed as being high enough, then defensive driving courses should be considered. It is estimated, for example, that one in three company cars will be involved in an accident in any one year (the figure for private vehicles undertaking company business is at present impossible to estimate as no accurate records are kept). Of these accidents, 95% are caused by driver error. Many organisations have reduced these figures dramatically through the introduction of defensive driving training for key members of staff.
Another approach is to introduce in-house training through the use of CD-ROM software such as Interactive Defensive Driving (4DI. Telephone 01484 400399, price £40). This programme aims to help experienced drivers improve their skills by considering and applying the principles of observation, anticipation, planning and restraint. The same company also supply a more technically advanced multimedia CD-ROM entitled Advanced Driver Training (price £110) which takes the form of an interactive tutorial.
Vehicle Record
An obvious step in the control of private vehicles used for company business is the introduction of a register in which details of vehicles used regularly or extensively to carry out work activities are kept. The details kept could include:
o Physical description
of the vehicle,
its age, capacity, etc
o When last serviced,
MOT details, etc
o Its road worthiness,
brakes, lights,
steering, horn etc
o Insurance details,
when due and limit
of cover etc
o Restrictions on drivers,
competence,
licence requirements, health restrictions
etc
o Any additionally training
required in
order to use this vehicle for certain
activities
Activities
The advantage of utilising uniform company cars is that a generic assessment can be carried out, say with regard to the loading and unloading of material into and from the boot, and that this assessment will remain valid for any of the cars provided the environment remains relatively similar and the individual involved does not create additional difficulties (perhaps due to height, health problems or pregnancy). However, private vehicles may differ greatly in regard to physical dimensions and capacities and these differences may have consequences for the assessment. It is necessary to be realistic here and to bear the scale of risk in mind in each particular case, otherwise this approach could prove to be unduly onerous.
Hopefully it is not common practice for hazardous and flammable substances to be transported in private vehicles on company business, but it is not unheard of for LPG cylinders, for example, to be transported in this way. Careful consideration needs to be given to the suitability of the vehicle, the competence requirements of the driver and the possibility of an alternative approach.
In general, work activities involving private vehicles (like any other work activity) need to be risk assessed under the Management of Health and Safety at Work Regulations 1992 in order that the safe system of work, required under the Health and Safety at Work Act 1974, can be provided. Specific activities may also need to be assessed under regulations such as the Manual Handling Operations Regulations 1992 and the Control Of Substances Hazardous to Health Regulations 1994. The arrangements made to control such activities need to be recorded, where 5 or more are employed, under the Management Regulations and the procedures adopted need to be included under the arrangement section of the Health and Safety Policy required under the Act (again this needs to be in writing where 5 or more are employed). [We will be looking at the legal requirements in more detail in Part 2 of this article].
Summary
The Royal Mail case has major implications for virtually every employer in Britain. It requires a careful and systematic approach to identifying where and when private vehicles are used to undertake company business in order that the scale of the issue for a particular organisation can be established. Once this has been done, appropriate formal controls, which reflect the scale of the risks involved, can be introduced, monitored and evaluated. (Perhaps fire-extinguishers will be required to be fitted and first-aid boxes provided?)
Hopefully, such an approach will not only meet legal costs but also lead to a more efficiently managed transport policy within the organisation.
Legal Aspects
Background
The Royal Mail pleaded guilty to three offences arising from the death of a 16 year old Stroud delivery office postal worker. He died after being knocked off his motorbike just seconds into his early morning round. Although the prosecution agreed that the death was the responsibility of the driver of the car which knocked him off his motorbike, they argued that he would never have been riding it in that place or at that time if health and safety procedures had been followed. "The accident showed up specific shortcomings in procedure. It was symptomatic of the general failure to devise and maintain safety checking systems".
Although no-one had given the young person express permission to ride the motorbike at work, its use was condoned by management. "It was plain as a pikestaff. He walked around with a crash helmet and if it was obvious to everyone else, how could management not be aware of it?"
Apparently the motorbike did not have an adequate rack or mail pouches and a safe system of work drafted by Royal Mail in 1988 had not been implemented. Additionally, there was no written policy in force governing the use of private vehicles and no formal regulation of their use was made by management even though it was aware of the practice. In fact the police brought the incident to the attention of Stroud District Council's environmental health department, who took the prosecution, after being told by a Royal Mail manager that "it turned a blind eye to the use of private vehicles for work". According to John Pullin, environmental services manager, "if it had not been for the police officer taking it on his own initiative to contact us we would have been none the wiser".
Following the fatality the environmental health department expected Royal Mail management to take steps to rectify the situation. When it failed to do so, they served an improvement notice requiring the introduction of a safe system of work for the use of private vehicles. Royal Mail was required to carry out risk assessments on the use of private vehicles at work and to maintain lists of authorised vehicles and their registration numbers. This forced Royal Mail to address the problem in the 350 delivery sorting offices in the South West. When it became apparent that improvements would be limited to that region, the environmental health department decided to prosecute in order to send a clear message elsewhere.
According to Communications Workers Union Assistant Secretary Bill Hayes: "Our members using their own vehicles are not just subsidising Royal Mail, which is foolish enough, they are also running risks with insurance, as well as facing safety dangers by operating vehicles not designed for mail delivery".
Union Campaign
The CWU were running a campaign against the use of private vehicles at work prior to the fatality. They claim that an ambiguous stance was adopted by Royal Mail management who both "told CWU Headquarters that they would not encourage staff to use their private cars on delivery and, on the other hand, went ahead and launched their `New Deal For Delivery Car users` for those wishing to use their private cars on delivery".
The union claim that the position with regard to insurance cover was unclear and that double standards existed with regard to driver fitness where "no medical standards were enforced for private car users whereas strict standards were imposed via the Occupational Health Service for official vehicle drivers".
With regard to roadworthiness, although it was a requirement that private cars be maintained in a roadworthy condition at all times and be open to inspection by the Royal Mail Road Transport Workshop Staff, the CWU claim that: "This was not enforced anywhere that we know of and not a single inspection of a private car had been undertaken by union members at the MT Workshop". According to CWU the Check Sheet drawn-up for private vehicles only had 10 checks related to the vehicle itself compared to 47 on the official Royal Mail vehicle inspection sheet and the 40 items on an MOT Check Sheet.
Court Decision
The following information is taken from the memorandum of a conviction or other proceedings entered in the Register of the Magistrates' Court, South Glos. Magistrates' Court, No 2 Court sitting on 25th March 1997 at 2pm.
o Between the 1st June 1995 and the 31st
December 1995 being an employer, did
contravene Section 2(1) and 2(2)(a) of
the Health and Safety at Work Etc Act
1974, in that you failed to operate a
safe system of work in the Royal Mail Stroud
delivery office in that there was no
proper system operating for authorising or
permitting the use of private motor
vehicles by your employees in the course
of the discharge of their duties thus
ensuring that any vehicle that was so used
was roadworthy, that the driver was a
competent person who was qualified to
drive and that the said vehicle was insured
for the purpose of delivering the mail,
whereby you are guilty of an offence as
provided by Section 33(1)(a) of the Health
and Safety at Work Etc Act 1974 and liable
to a penalty as provided by Section 33 (1)(a)
of the said Act as amended.
Fined £7,000 and £14514.23 costs.
o Between the 1st June 1995 and the 31st December
1995, being an employer, did contravene Section
2(1) and 2(2)(b) of the Health and Safety at
Work Etc Act 1974, in that you failed to ensure
that the arrangements for transporting the mail
were safe and without risk to health in that
you permitted the mail to be carried in unregulated
and unauthorised private vehicles in relation
to which there were no checks in respect of
their roadworthiness or to ensure that the
driver of the same was a competent person or
that the said vehicle was insured whereby you
are guilty of an offence as provided by Section
33(1)(a) of the Health and Safety at Work
Etc Act 1974 and liable to a penalty as provided
by Section 33(1)(a) of the said Act as amended.
Fined £7,000.
o Between the 1st January 1993 and the 31st
December 1995, being an employer, did contravene
Regulation 4(1)(b)(i) of the Manual Handling
Operations Regulations 1992 in that you failed
to make a suitable and sufficient assessment
of the manual handling risks involved in the
loading and unloading of private vehicles with
the mail, whereby you are guilty of an offence
as provided by Section 33(1)(c) of the Health
and Safety at Work Etc Act 1974 and liable to
a penalty as provided by Section 33(3) of the
said Act as amended.
Fined £1,300.
Royal Mail pleaded guilty to all three charges. The following two additional charges being withdrawn:
o Failure to instruct, train or supervise
employees in any or any safety policy
as regards the use of private vehicles
during the course of delivering the
mail in contravention of Section 2(1)
and 2(2)(c) of the Health and Safety
at Work Act.
o Failure to carry out a suitable and
sufficient risk assessment of the risks
to the health and safety of employees
undertaking to make deliveries of mail
using private vehicles and the suitability
of each vehicle for carrying loads in
contravention of Regulation 3 of the
Management of Health and Safety at Work
Regulations.
Implications
The case has made clear what has been suspected for a long time, namely that the Health and Safety at Work Act and its associated legislation, unless specifically excluded by the way in which regulations made under the Act are framed, is applicable to private vehicles used for company business.
The CWU would like matters to be made even clearer through the extension of RIDDOR to cover all work-related road accidents. The Chartered Institute of Environmental Health, the body representing environmental health officers, adds that: "clear guidance is needed to spell out duties and responsibilities on employers, employees and enforcement agencies and bringing all work road accidents under RIDDOR would be a positive step in that direction".
The Chartered Institute of Environmental Health's concern follows a survey of chief environmental health officers. The survey related specifically to two-wheeled delivery riders and revealed that a total of 19 incidents involving fast-food and other delivery riders were reported in 1995, including 2 fatalities. The survey found that 77% of chief environmental health officers believed that at-work road accidents should be reportable under RIDDOR and 78% believed that delivery riders should receive basic road safety training. Ian MacArthur, Assistant Secretary of the Chartered Institute, added that: "A great many young and inexperienced people are attracted to fast-food delivery work which while it is simple enough, presents a range of hazards and risks which must be minimised. It is clear that there is presently much confusion in relation to what can be done to protect these people".
In order to meet both their legal and moral responsibilities, employers need, as a minimum, to:
o Incorporate arrangements relating
to the use of private vehicles into
their safety policies.
o Identify and record where such use
use takes place.
o Ensure the vehicles are taxed, insured,
roadworthy and suitable for the intended
purpose.
o Ensure the competence of the driver and
provide basic road safety training and
instruction and training in the policy
and procedures involved.
o Identify the hazards involved in the
use of private vehicles and assess the
level of risk.
o Provide a safe system of work for the use
of private vehicles. This should include
the setting of realistic delivery times
which do not place undue pressure on drivers
to take risks on the road.
o Assess specific risks related to particular
usage of private vehicles. For example:
the manual handling components of the tasks
involved or the transport of flammable or
hazardous chemicals.
The Pizza and Pasta Association has produced a code of practice for home delivery operators in association with the Department of Transport. To obtain the Association's insurance, outlets have to comply with the code's recommendations. These include:
o Delivery riders must carry out
daily checks of their vehicles.
o Spot checks must be made by managers
of vehicles and they should also carry
out a comprehensive weekly check.
o Vehicles must be maintained in
accordance with manufacturer's
instructions and a record be kept.
o Operators must ensure that all
riders have suitable experience.
o All riders must be suitably
dressed.
o Delivery times should be estimated
on the basis of poor conditions.
When deliveries are persistently late
in an area, an adjustment should be
made to the estimated time to reduce
the pressure on riders.
o Riders must not carry large sums of
cash or credit cards and should be
given clear instructions on how to
act in the case of being stopped
and robbed.