The Law

• Health and Safety at Work Act 1974
• The Provision and use of Work Equipment Regulations 1998
• Management of Health and Safety at Work Regulations 1999
• Corporate Manslaughter and Homicide Act 2007
• Health and Safety Offences Act 2008
• The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995

Health and Safety at Work Act 1974

This is the foundation from which all other pieces of Health and Safety legislation are built. It covers all aspects of the health, safety and well-being of those engaged in work activities, as well as those who may be affected by those works.

 “health and safety law applies to on-the-road activities, and risks should be managed within a health and safety system.''

It requires you to

• ensure, so far as is reasonably practical, the health and safety of all employees while at work
• ensure that others are not put at risk by your work-related driving activities

This means that, whatever you do and wherever you drive during the course of your business and work activities, there is a legal responsibility to make sure everything is done in the safest possible manner.

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The Provision and Use of Work Equipment Regulations 1998

These regulations set out minimum standards for the use of equipment at work.

 “Some employers believe, incorrectly, that provided they comply with certain road traffic law requirements, e.g. company vehicles have a valid MOT certificate, and that drivers hold a valid licence, this is enough to ensure the safety of their employees, and others, when they are on the road.”

The main requirements are for employers to:

• take account of working conditions and hazards when selecting equipment
• provide work equipment which conforms to relevant safety standards
• ensure that the work equipment is suitable for its intended purpose and used only for that purpose
• maintain and keep the equipment in good working order
• ensure that appropriate safety devices are available, if required
• issue staff with appropriate instructions, training and supervision to use the work equipment safely
• make sure that equipment is inspected after installation or after assembly at a new location.

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Management of Health and Safety at Work Regulations 1999

Under this more recent addition to health and safety law, companies have a firmly laid down responsibility to demonstrate effective management of the health and safety within their company and it's working environment.

It is important to note, particularly within the context of work-related driving, that even commuting to work can sometimes need to be included within the scope of your company's management of health and safety if the driver in question is travelling from home directly to a location other than his usual place of work.

There are a number of critical points to note from these regulations:

• It lays down a legal responsibility to manage health and safety effectively.
• It requires you to carry out an assessment of the risks to health and safety of your employees while they are at work, and to other people who may be affected by their work activities.
• It requires you to periodically review your risk assessment so that it remains appropriate.
• It requires you to consult with employees, and where applicable their health and safety representatives, on the health and safety issues covered in the regulations.

Work-related road safety can only be effectively managed if it is fully integrated into your company's arrangements for the management of all health and safety at work.

A risk assessment for a work-related driving activity should follow all of the same principles as one carried out for any other work activity.

Failure to properly and effectively manage work-related road safety is more likely to endanger other people than failure to manage risk in the workplace.

The Department for Transport has produced guidance notes relating to the management of work-related road safety and driving at work. Drivex Ltd has extensive knowledge of this and the other relevant health and safety legislation, and works with companies to ensure they are complying fully with the law.

Failure to comply with health and safety law relating to work-related driving can, of course, lead to serious consequences, not only for the driver of the vehicle involved but for potentially every level of employee within the company, from immediate line manager to fleet manager to company director.

"Are you and your business at risk from the actions of your drivers?...."

Police, along with the Health and Safety Executive, do not hesitate to act in cases where it is shown that the accident has been caused in some way by a company's failure to manage the risks associated with the work-related driving of the person involved.

The 2007 Act puts the law on corporate manslaughter (in Scotland, corporate culpable homicide) onto a new footing, setting out a new statutory offence. In summary, an organisation is guilty of the offence if the way in which its activities are managed or organised causes a death and amounts to a gross breach of a relevant duty of care to the deceased. A substantial part of the breach must have been in the way activities are managed by senior management.

The offence addresses a key defect in the law that meant that, prior to the new offence, organisations could only be convicted of manslaughter if a "directing mind" at the top of the company (such as a director) was also personally liable. The reality of decision-making in large organisations does not reflect this and the law therefore failed to provide proper accountability, and justice for victims. The new offence allows an organisation's liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across the organisation.

The new offence is designed to complement, not replace, other forms of accountability such as prosecutions under health and safety legislation and is specifically linked to existing health and safety requirements. The offence will support well-managed organisations by targeting those which cut costs by taking unjustifiable risks with people's safety.

The Act was given Royal Assent on 26 July 2007 and the majority of it came into force on 6th April 2008. The Act applies across the UK.

The Act applies to:

1. Companies incorporated under company legislation or overseas.
2. Other corporations including
   • Public bodies incorporated by statute such as local authorities, NHS bodies and a wide range of non-departmental public bodies.
   • Organisations incorporated by Royal Charter.
   • Limited liability partnerships.
3. All other partnerships, and trade unions and employer's associations, if the organisation concerned is an employer
4. Crown bodies such as Government departments
5. Police forces

The offence is concerned with the corporate liability of the organisation itself and does not apply to individual directors, senior managers or other individuals. Nor is it possible to convict an individual of assisting or encouraging the offence.

However individuals can already be prosecuted for gross negligence manslaughter/culpable homicide and for health and safety offences. The Act does not change this and prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so.

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Health and Safety Offences Act 2008

A new Act which raises the maximum penalties that can be imposed for breaching health and safety regulations and the range of offences for which an individual can be imprisoned came into force in January 2009.

The new Act:

• Raises the maximum fine which may be imposed in the lower courts to £20,000 for most health and safety offences;
• Makes imprisonment an option for more health and safety offences in both the lower and higher courts;
• Makes certain offences, which could previously only be tried in the lower courts, triable in either the lower or higher courts.

NOTE: Prosecutions of individuals for health and safety offences are rare for employers who ensure compliance with health and safety legislation through robust Health and Safety Policies and Standards. It is unlikely that employees who follow them would be subject to individual prosecution.

Comparison of current penalties with previous penalties:

H.S.E.'s Enforcement Policy Statement makes it clear that prosecutions should be in the public interest and where one or more of a list of circumstances apply. These include where:

• a breach of the legislation resulted in death.
• there has been reckless disregard of health and safety requirements.
• there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance.
• the standard of managing health and safety is found to be far below what is required by health and safety law, giving rise to significant risk.
• there has been a failure to comply with an improvement or prohibition notice; or a repetition of a breach that was subject to a Caution.
• false information has been supplied willfully, there has been an intent to deceive, or inspectors have been intentionally obstructed.

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The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995