Managing workplace transport and occupational road risks – a perennial challenge

As we know, the Health and Safety at Work etc. Act 1974 (HSWA) imposes duties on employers to ensure the health, safety and welfare of employees and not to expose others affected by their activities to health and safety risks, insofar as is reasonably practicable. A fundamental aspect of ensuring compliance with these duties is carrying out a suitable and sufficient risk assessment, as recognised by the legal requirements set out in the Management of Health and Safety at Work Regulations 1999 (MHSWR). Notwithstanding this, risk assessment continues to be an area of issue when it comes to workplace transport-related incidents and prosecutions.

Photograph: iStock/deepblue4you

The potential consequences in human terms of failure to properly manage the interaction of people and vehicles in a workplace are obvious, but the potential financial and reputational consequences were made clear with the conviction, earlier this year, of Yorkshire metals recycling company, CF Booth Limited, after an employee was injured after being struck by a wagon at a processing site.

According to the HSE¹, the worker was struck by a moving 32-tonne skip wagon when walking across the company’s site yard. He was not wearing a high-vis jacket and did not see the wagon; similarly, the driver did not see the pedestrian while concentrating on manoeuvring around some low-level skips placed near the crossing site.

HSE’s investigation found that there was no suitable and sufficient workplace transport risk assessment in place and the company had failed to implement appropriate control measures, such as physical barriers and crossing points. CF Booth Limited pleaded guilty to a breach of section 2 of the HSWA and received a significant fine in the sum of £1.2 million.

Corporate manslaughter offences

Failing to manage workplace transport-related risks can also lead to prosecution for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (the 2007 Act).

A corporate manslaughter prosecution can proceed where, following a fatality, there is evidence that the way in which an organisation’s activities were managed or organised caused the death and amounts to a gross breach of a duty of care owed to the deceased. The way in which an organisation’s activities are managed by its senior management must be a substantial element in the breach.

A recent example of a workplace transport-related corporate manslaughter prosecution was one that resulted in the conviction of Ward Recycling Limited in January 2024².

The company was fined £1.75 million after being found guilty of corporate manslaughter and a further £400,000 for breaches of section 2 and 3 of the HSWA after a worker was killed by a loading shovel. The worker had been returning from the site’s welfare cabins to his workstation. To do so, he needed to walk across a traffic area at the site where mobile vehicles, including two loading shovels, operated. One of the loading shovels struck him when he was walking in the traffic area.

HSE’s investigation found that the company failed to protect pedestrians from the mobile plant operations it was carrying out at the site. There were no suitable traffic management arrangements in place, resulting in pedestrians being at risk of being struck by moving vehicles. Loading shovels are particularly dangerous if adequate segregation is not in place, in part due to the limitations to the operator’s visibility around the machine. A visibility assessment by HSE found that an area over 10 metres in front of the vehicle could be obscured from the driver’s view.

Workplace transport-related hazards and risks must be considered, assessed and suitably mitigated as part of any workplace risk assessment. The effective implementation of physical segregation is particularly important on large, busy sites with multiple contractors. HSE has guidance on workplace transport³, including on safe traffic routes and separating people from vehicles.

Occupational road risk duties

However, the risks posed by the movement of vehicles do not end at premises and site boundaries. Health and safety law equally applies to work activities on the road. This means that employers are required to manage the health and safety risks to workers who drive a vehicle or ride a motorcycle or bicycle on the road as part of a work activity.

Matthew Sulley is a senior associate at Pinsent Masons. Photograph: Pinsent Masons

According to a recent report by the Society of Occupational Medicine commissioned by National Highways⁴, a 2020 study revealed that nearly a third of all road fatalities involved someone driving for work, with more deaths occurring from work-related road travel than from incidents in the workplace⁵.

According to Driving for Better Business (a National Highways programme to help employers reduce work-related road risk, control the associated costs and improve compliance with legislation and guidance), statistically five people will die on our roads each day, and over half of all registered vehicles in the UK are driven for work in some capacity⁶. These figures underline the key role to be played by employers in driving continuous improvement by implementing appropriate occupational road risk control measures, clearly communicating to employees who drive or ride for work purposes that adherence to those controls is a requirement and of the consequences of failing to do so.

Employers must carry out risk assessments to identify any material risks arising from their operations, and then put in place suitable measures to eliminate or reduce those risks as far as is reasonably practicable. In relation to occupational road risk, this must include consideration of a range of matters, including: vehicle condition and maintenance; work rotas and delivery schedules; fatigue and driver hours; licensing/insurance; use of mobile phones; drug and alcohol policies; driver behaviours (competency, speeding, harsh braking, reaction times etc.); and the safe loading or unloading of vehicles.

The controls put in place to manage and reduce the risks should be regularly monitored and reviewed, and appropriate information, instruction and training must be given to employees to enable and empower them to adhere to the controls. Employers must also ensure that any vehicles used for work are suitable for the purpose for which they are provided, and that they are maintained and kept in good repair. Vehicles are required to be kept in a condition so that no danger is caused, or likely to be caused, to any person using the vehicle or other road users.

Occupational road risk prosecutions

While prosecutions relating to occupational road risk have historically been uncommon, there are some significant examples, including the prosecution of haulage firm owner Michael Holgate for gross negligence manslaughter after one of his company trucks, which had defective brakes, crashed and killed the driver and passenger of another vehicle on the M62 in 2018. It was reported that the defective brakes had been reported by the driver, but he had been instructed to continue with a long-distance delivery.

Mr Holgate pleaded guilty to an offence under section 3 of the HSWA but was also convicted of two separate counts of gross negligence manslaughter and sentenced to 15 years’ imprisonment. The truck driver was separately prosecuted and pleaded guilty to two counts of causing death by dangerous driving, an offence under the Road Traffic Act 1988, and was sentenced to six years’ imprisonment.

In another well-known case, Renown Consultants Limited were fined £450,000 and ordered to pay £300,000 in prosecution costs in 2020 after being convicted of breaches of section 2 and section 3 of the HSWA and regulation 3 of the MHSWR, for failing to manage fatigue and ensure that two of its workers were sufficiently rested to work and travel safely, which included a failure to carry out a suitable and sufficient risk assessment. The two men died when, during a journey along the A1 in a company van to Doncaster after a night shift in Stevenage, their vehicle left the road and crashed into a parked lorry in the early hours of the morning in Lincolnshire.

The consequences of failing to adequately manage workplace transport risks and occupation road risk can be catastrophic – the clear moral, legal and ethical imperative for ensuring that such risks are appropriately controlled and managed is, as illustrated by the above cases, underlined by the very real human, reputational and financial costs of failing to do so.

Matthew Sulley is a senior associate at Pinsent Masons law firm. Contact him at:

pinsentmasons.com

References

1. Recycling company fined £1.2m after worker hit by a wagon | HSE Media Centre
2. Recycling company fined after worker killed by loading shovel | HSE Media Centre
3. Workplace transport - HSE
4. (Driving_and_Occupational_Health_August_2024.pdf (som.org.uk),
5. Final_report_ward_christie_walton_dec_2020.pdf (ucl.ac.uk)
6. Driving Change - it’s personal. Driving for Better Business