Those responsible for fleet compliance can no longer afford to be complacent. Research by Magic Circle law firm Clyde and Co has revealed that the number of directors and senior management prosecuted for health and safety breaches more than trebled in a year. There were a total of 46 prosecutions in the year to 31 March 2016, compared with the previous year. Of these, 24 were found guilty and 12 were given prison sentences. In addition, issuing of fines rose by 46%.
To make matters worse, these figures are unlikely to reflect the full extent of the new guidelines issued by the Sentencing Council on 1 February 2016, which detail how courts should decide upon appropriate penalties for health and safety, corporate manslaughter and hygiene offences. Commentators believe that the onus of the new guidelines are likely to result in even harsher penalties for the most culpable offenders.
With these sobering issues in mind, we take a brief look at an employers’ duties in relation to road safety and what the new sentencing guidelines will mean in practice for those managing fleet compliance.
Your duty to prevent accidents
Ensuring your employees abide by the Road Traffic Act and Highway Code is not sufficient; employers must do much more to manage the risks.
Under the Health and Safety at Work Act 1974 (the HSWA), employers must take all reasonable steps to minimise health and safety risks to their employees that may arise from their activities at work, as well as anyone who may be affected by them. This includes all driving in the course of their work, whether that be in a company vehicle, a hired one or the employee’s own.
Prevention measures include: creating a road risk policy, keeping a record of all incidents, monitoring driver compliance, and educating and training drivers.
Companies are now judged on the degree of risk, not the actual harm that occurred
Previously, companies were generally sentenced based on the severity of harm that occurred, but the new guidelines now assess the degree of risk (low/medium/high) and to what degree this risk was foreseeable. Companies, therefore, can no longer avoid a tougher sentence just because they narrowly avoided a more harmful injury - or find that they face a harsh sentence because of an unfortunate and unlikely turn of events.
For example, if evidence shows that a driver has a history of road traffic accidents and that their driver behaviour continues to be, at best, erratic and, at worst, reckless, then it would be reasonably foreseeable that their behaviour could result in a bad accident occurring. The courts are therefore unlikely to let a company off lightly if an accident only resulted in minor injuries.
The degree of culpability
The second aspect that courts will consider is how ‘culpable’ a company is for health and safety failing, which ranges from ‘low’ to ‘very high’. A company deemed to be at low risk of culpability may, for example, have excellent procedures in place to guard against road traffic risks, whereas one that has given no consideration to it would be deemed “highly culpable” or if found to have been reckless and ignored obvious risks, “very high”. If a company has taken all reasonable precautions to prevent risks but an accident still occurred, then a court is unlikely to find them guilty.
The organisation’s financial circumstances
Courts must now take into consideration a company’s means and ability to pay a fine, with its turnover and profits balanced against any negative impact on employees or a detrimental impact it may have on improving health and safety in the workplace or paying compensation claims.
Companies with a turnover of £50 million or more that are found to be ‘highly culpable’ face a recommended minimum starting point of £500,000 for the lowest category of harm, which extends up to £4million for the highest level of harm.
However, even the smallest companies with a turnover of less than £2million face a recommended minimum fine of £24,000 when very highly culpable but a low level of harm occurs, rising to £250,000 for the highest level of harm.
To see the guidelines in full, head here.
Directors and senior management - increased prosecutions
As we outlined at the start, personal prosecutions of senior management responsible for health and safety breaches has more than tripled and it is likely that these will increase further under the act.
As Dr Simon Joyston-Bechal, Director at Turnstone Law in the SHP's eBook, Health and safety legislation review: reflecting on a year of significant change
“My interpretation of the new threshold is as follows: if a director or employee knows there is a breach of the law that has at least a medium likelihood of causing death or disability, then the court is directed as a starting point to impose a punishment of one year’s imprisonment, with a range of between 6 and 18 months depending on other relevant factors.”
The onus is on you to prove you did all you could
Regulation 40 of the HSWA states that it is for:
“the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement”.
It is therefore imperative that those responsible for fleet compliance ensure that they not only take all necessary steps to prevent accidents, but that they fully document these as well.
Find out more about the steps that fleets should take to cover themselves in the eyes of the law with our guide: or find out how well your business is complying with out free compliance health check offer below.