An employer has recently been convicted and fined £450,000 for health and safety breaches arising from a road traffic incident caused by a fatigued employee. Driver fatigue is the cause attributed to more than 300 fatal road traffic accidents in the UK each year and the Department of Transport suggests that up to a third of all road traffic accidents each year involve someone driving as part of their work. Is this prosecution an indication employers are now to be held to account more often for employee RTAs?
Former Principal HSE Inspector Melvin Sandell and H&S specialist Solicitor Sue Dearden consider the issues behind R -v- Renown Consultants and offer a view on what this case may mean for employers whose business encompasses road travel by its employees.
Almost seven years ago, on 19th June 2013, railway welders Zac Payne (aged 20) and Michael Morris, both employees of Renown Consultants Limited, died in a road traffic accident on the A1.
The work van they were in crashed into a parked van while being driven back to Doncaster following a night shift in Stevenage. Payne was driving and it was thought that he fell asleep at the wheel.
Payne had left Doncaster the previous day at 04:30 and driven to Northumberland arriving at 07:30 for work which was then not required. So, at midday he headed back to Doncaster arriving at 15:00. He was asked to deal with an overnight railway welding job in Stevenage and, with Morris, they set off from Doncaster at 19:18 arriving at 21:47. They then worked from 23:15 until 03:40 the next day. The crash happened on the A1 when they collided with a stationary vehicle at about 05:30 while on their way back to Doncaster 25 hours after Payne had begun work by driving to Northumberland. Commuting is considered part of your work when it is not to your usual place of work.
Who investigated and why?
The Office of Road and Rail (“ORR”), previously the Office of Rail Regulation, prosecuted this case.
The ORR is best known for its regulation of the rail industry’s health and safety performance, holding Network Rail and other rail infrastructure networks to account.
The ORR is also the independent monitor of Highways England (previously the Highways Agency) and has responsibility for the management of the strategic road network incorporating the motorways and main ‘A’ roads in England (including the A1 where this accident occurred).
The ORR’s prosecution of this case was due to the fact that since the Railways Act 2005, responsibility for railway related health and safety has been devolved from the HSE to the ORR. Renown supplies labour to the rail industry for rail welding and associated works on the UK’s rail infrastructure. Its jurisdiction therefore flowed from the nature of Renown’s work and not from its location on a strategic road.
Road traffic accidents would usually be investigated by the police whose primary focus is driver responsibility. In practice they rarely look beyond that to whether employers may have criminal liability when an accident occurred during work.
The Health and Safety at Work etc Act if interpreted broadly would give the HSE the power to investigate work related accidents which occur on the roads but they have rarely done so, leaving the police to investigate under road traffic legislation. Clearly there are resource limitations impacting on their ability to look into these matters but the Work Related Death Protocol agreed between the HSE and the Police makes it clear that if appropriate, the HSE can prosecute for work related road traffic accidents.
Prosecution of employers under health and safety legislation for work related to road traffic accidents is not entirely without precedent but it is, somewhat surprisingly, comparatively rare.
Key issues faced in the renown case
The company pleaded not guilty to charges for breaches of:
- duties owed by employers under sections 2 and 3 of the Health and Safety at Work etc Act 1974(failure of duty to ensure so far as is reasonably practicable that staff (section 2) and others (section 3) are not exposed to risks to their health and safety), and
- regulation 3 of the Management of Health and Safety at Work Regulations 1999 which mandates suitable and sufficient risk assessments are made and maintained by employers of the risks to the health and safety of staff and others.
It was alleged in this case that Renown Consultants had failed to manage fatigue amongst its staff; that under 25s (including Payne) frequently drove work vehicles (though the vehicle policy stipulated over 25s only) and that the company failed to perform a suitable and sufficient risk assessment on the day before the accident. This led to the company failing to comply with its own fatigue management procedures, failed to comply with working time limits for safety critical work (which includes welding and trackside work and requires a minimum of 12 hours between each job).
Both Payne and Morris had been on zero hours contracts which, it was alleged also incentivised employees to volunteer for work even when tired, as they were only paid for the shifts they worked. This issue was aggravated by Payne and others being reliant on Renown for securing the qualifications they needed to qualify as welders, which discouraged them from refusing shifts.
Renown was convicted at Nottingham Crown Court on 19th March 2020. Sentence was deferred until 13thMay 2020. The judge was obliged to follow the 2016 Health and Safety Sentencing Guideline and applying that Guideline to this case, the company was categorised as a small business (turnover £2m to £10m). Culpability was assessed as high with a high risk of death or serious injury. That made the starting point for the penalty £250,000. This was doubled to £500,000 to reflect the fact two men had lost their lives as a result of the breaches. The fine was then reduced by £50,000 to £450,000 to reflect mitigating factors including prompt remedial steps to change its policy post-accident, and a good previous health and safety record. The judge made no reduction to reflect “the COVID factor” which had impacted on profitability and turnover projections but allowed the business 2.5 years to pay the penalty. Because the company had pleaded not guilty there was no reduction for plea to be applied which is usually the biggest discount to sentence – a reduction of one third will be applied if a guilty plea is entered at the first court hearing.
Dividing the total penalty between the charges the company was fined £150k for the 3 health and safety offences plus £300,000 for prosecution costs (total penalty £750k)
Can we expect more of these prosecutions?
This was the first prosecution of this nature by the ORR and clearly its jurisdiction is limited to the industry it regulates.
Prosecution following road traffic breaches has previously been seen as the province of the police who will investigate a range of road traffic offences but not health and safety breaches
At present, the ORR’s prosecution does not suggest to us that we can expect an imminent surge of HSE prosecutions for work related road traffic accidents, but employers should be aware that this precedent outlines a clear possibility. The ORR have made it clear by this prosecution that employers should be managing their drivers and vehicles to ensure they are fit for the work required of them and the HSE will have taken notice of the outcome.
What should employers be doing?
The Health and Safety at Work etc Act 1974 places legal duties on employers to take all reasonable steps to ensure that employees and others are not put at risk from work activities, including work related driving on public roads.
The Management of Health and Safety at Work Regulations 1999 require employers to assess risks to employees and others from their work activities, which include work related driving, and to ensure those risk assessments are kept current.
Risk assessments for travel should be carried out in the same way that they are for other health and safety risks. Clear policies should also be in place which cover:
- safe driver – in particular, considering competence and fitness to drive at the time of each journey
- safe vehicle to be used – its suitability and roadworthiness
- safe journey – including route planning allowing for reasonable breaks, monitoring of the weather, and consideration of alternative modes of transport
Guidance issued by the HSE provides a useful summary of the measures to consider and which they will often check is in place, on routine inspections.
Businesses with shift workers in which fatigue is a common issue should in particular take note.
Whether or not you feel the risk of prosecution of the business is low in this area, it is an actionable risk if you do not factor it into your health and safety management processes. Regardless of prosecution risk liabilities there are costs and the potential for adverse publicity and opprobrium, which result from any avoidable accident.