Risk assessments – legal requirements

Safety laws don’t just apply in the workplace, they extend to an employees’ own vehicle while at work, says Nicole Smith

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Many employers believe that complying with road traffic law requirements, such as ensuring company cars have valid MOT certificates and that drivers hold valid licences, is enough to ensure the safety of their employees and others on the road. But legally, it is not. The Health and Safety at Work Act 1974 states that employers must, "as far as is reasonably practicable", ensure the health and safety of employees while at work.

This includes all on-the-road activities, regardless of who owns the car. David Faithful, partner at law firm Clarke Willmott, says: "Whether it’s in a company or privately-owned vehicle, a trip to the post office at lunchtime means the organisation has the same duty of care responsibility." Employers also have a responsibility to ensure others aren’t put at risk by staffs’ work-related driving.

The Health and Safety Executive’s (HSE) publication Driving at work: managing work-related road safety (2003), sets out the basic steps that organisations must carry out to assess risk. These include: looking for hazards, deciding who might be harmed, evaluating the risks and deciding whether existing precautions are adequate or whether more needs to be done, recording the findings (for organisations with five or more employees), reviewing the assessment and revising it if necessary.

As Roger Bibbings, occupational safety adviser at the Royal Society for the Prevention of Accidents (Rospa), explains: "In short, [organisations] are legally bound to understand what its exposure to risks are, to control that risk, and to prioritise action." Under existing law, it has proven difficult to prosecute corporations as opposed to individuals because of the difficulty of identifying a "controlling or guilty" mind in the organisation. The Law Commission has therefore recommended that, in the event of serious injury or death on the road, organisations can be prosecuted under the Health and Safety law for duty of care failings.

The government has agreed that individual directors won’t be liable for corporate killing under the proposals for the new law, but individuals will remain liable under the existing Health and Safety at Work Act if their failings lead to an offence being committed. "The difference between corporate manslaughter [legislation] and the proposed corporate killing law is that with corporate manslaughter you need someone who is inextricably linked with the offence (for example, a guilty mind).

Corporate killing removes that requirement so all you need to show is that there was a breakdown in the health and safety regime of the company, which resulted in a serious accident or fatality", explains Clarke Willmott’s Faithful. If found guilty, penalties can be sizeable, with fines depending on a company’s size

Employers’ responsibilities

Health and safety laws apply on the road as well. Organisations are therefore legally obliged to carry out a comprehensive risk assessment.

Employers have a responsibility to non-employees who may be put at risk by their employees’ driving activities.

A risk assessment entails understanding an organisation’s exposure to risks, controlling those risks and prioritising action.

The proposed corporate killing law will mean organisations can be prosecuted for serious injury or death on the road, resulting in sizeable fines.