Occupational Road Risk

In this Question and Answer section, Mike Ellerby addresses some of the questions concerning employers about their duties and responsibilities with respect to Occupational Road Risk (ORR) and driving, including the need for risk assessment and the use of mobile phones whilst driving.

Q – What is the legal position with respect to people driving on Company business?

Unlike most aspects of health and safety, there is no specific legislation relating to occupational road risk. However, in September 2003, the HSE and Department for Transport published a guidance document entitled: “Driving at Work: Managing Work-related Road Safety”,.

This document made a number of key points, including:

• Existing health and safety legislation, and in particular the Health and Safety at Work, etc Act 1974, applies to employees when they are making work-related road journeys
• Organisations must undertake risk assessments to identify the risks (as required by the Management of Health and Safety at Work Regulations 1999)
• There is no difference between an employee making a work-related journey in a company-provided vehicle or the employee’s private vehicle. There is still a requirement for the employer to manage the employee’s safety while making the journey.

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Q – Do I need to carry out a risk assessment for driving (or occupational road risk)?

The Management of Health and Safety at Work Regulations 1999 create a duty on employers to undertake suitable and sufficient assessments of the risks arising from the company’s undertakings, including all work-related driving activities, such as driving or occupational road risk.

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Q – What should be considered in the risk assessment?

The employer should carry out a risk assessment of each driver, including employees who use their own vehicles for business purposes or use a pool (or hire) vehicle even on an occasional basis.

The assessment should cover three fundamental areas of work-related road safety, namely:

• the driver
• the journeys made
• the vehicles used

There may be other hazards arising from the use of vehicles that need to be considered, including: musculoskeletal Injury and lone working.

Driver – The assessment of the driver should include consideration of: attitudes towards driving and attitudes towards speed, age, sex, driving experience, collision and conviction history , and fitness to drive (eyesight, alcohol and drug awareness, ergonomics, mobile phone usage, training history, etc.).

Journey – The type of journeys undertaken can affect the level of risk. Consideration should be taken of exposure to risk (mileage, road type – with motorways being considered as the safest roads and urban roads the most dangerous in terms of collisions per mile driven, countries – driving in certain countries is safer than others, fatigue issues (including: a combination of driving and other working time and anti-social hours driving), etc. The prevailing road conditions also have an influence, with risks generally increasing in winter and adverse weather conditions. Fatigue is a factor of particular concern with drivers who: work long hours, spend long periods of time driving and who drive between 2 and 6 a.m. (when the body’s natural rhythms dictate it should be asleep) or between 2 and 4 p.m.

Vehicle – The assessment of the vehicle should include consideration of: ownership (company, lease, hire or private vehicle), type, class, engine capacity, European New Car Assessment Program rating (Euro NCAP Rating), the vehicles primary and secondary safety features, etc. The vehicle has the least influence over the risks faced, but issues such as fitness for purpose and the suitability of a vehicle given the driver’s experience can lead to high risk situations

Musculoskeletal Injury – At-work drivers face not only the risk of collision, but also the risk of musculoskeletal injury, which can arise from poor posture and repetitive movement when driving and from manual handling when loading and unloading.

Lone working can present significant risks for those whose work involves driving, making them more vulnerable than other workers because: in the event of a collision, there may be no one to summon help and because of the treat of violence, especially in view of the growing trend of car-jacking.

Q – What is the situation with the use of mobile phones whilst driving on Company Business?

It is a criminal offence in the UK to drive any motor vehicle while using a hand-held mobile phone, or to cause or permit another to do so. The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 expressly state that a person who “causes or permits any other person to use a hand-held mobile phone while driving, will be liable”.

A person is driving if the engine of the vehicle they have control of is running. This is true even if the vehicle is stationary. Therefore, the regulations apply when stopped at traffic lights, etc. This covers employers and potentially makes them liable for the acts of their employees.

The liability of the employer will be the same as any driver charged under the regulations, namely to pay the fine or the higher penalty if the matter goes to court. Section 26 of the Road Safety Act 2006 has increased the fixed penalty for drivers using a hand held phone or similar device from £30 to £60 and now includes three penalty points, which will go onto the employee’s driving licence. The same changes are being made to the penalties for not having proper control of a vehicle – a measure which can also be used where a driver has been distracted by using a hands-free mobile phones.

A mobile phone is hand-held if it is, or must be,

• held at some point during the course of making or receiving a call,
• or performing any other interactive communication function.

This includes:

• sending or receiving oral or written messages,
• sending or receiving still or moving images,
• or accessing the Internet.

It therefore covers the sending of text messages.

Using hands-free equipment does not contravene the regulations if the driver does not have to hold the phone. Any hands-free equipment fitted must comply with the BSI’s Guide to In-vehicle Information Systems. The pressing of buttons on a phone attached to the dashboard is permitted.

Irrespective of the above legislation, it should be noted that every employer has a duty to ensure the health and safety of employees and of non-employees (arising from Sections 2 and 3 of the Health and Safety at Work Etc Act 1974).

If an employer encourages, or even allows, an employee to use a hands-free mobile phone whilst driving, the employer may be called upon in a court to demonstrate how this is compatible with these duties.

The Royal Society for the Prevention of Accidents (RoSPA) has urged employers to adopt the following policy with regard to mobile phone use: “no driver should use a mobile telephone or similar piece of telecommunications equipment (whether hand-held or hands-free) while driving”. Further to this, the Department of Transport suggests that if it is essential for employees to be contacted while driving, they should be advised to use voice-mail, a message service or call diversion, and to stop regularly to check messages and return calls.