Health & Safety Update: Vehicle maintenance- an employer's
responsibility?
The Corporate Manslaughter and Corporate Homicide Act 2007
has been in force for nearly two months. A company can now be
charged with corporate manslaughter if it can be proved that
management failures contributed to an employee's death. Because of
this, health and safety obligations need to be considered carefully
and one area that can often be overlooked is vehicle maintenance.
So what requirements do employers have to make sure vehicles used
for business are kept in a roadworthy condition?
How much responsibility rests with the employer when it comes
to vehicle maintenance?
Under health and safety law, if an individual is using a vehicle
as an item of work equipment under the Provision and Use of Work
Equipment Regulations 1998, then basically the employer is
liable.
"Strict liability" – which means that the employer is liable
even if not at fault – has been determined as a result of the case
of Stark v. The Post Office (2000). In that case,
the Post Office had provided a vehicle with an unknown
defect. There was no way that anybody could have identified
this defect within the vehicle which caused an accident that
injured a postman. When the Court of Appeal considered this
case it felt that when the UK introduced regulations based on EU
requirements for health and safety, we actually created a strict
liability in terms of work equipment. So if an individual is
injured as a consequence of using work equipment then the employer
is strictly liable.
The employer has to do whatever is reasonably practicable to
protect an employee, and therefore there are issues about what is
reasonably practicable in certain circumstances. From the
commercial vehicle point of view there are often obligations laid
down by the Vehicle and Operator Services Agency (VOSA) in terms of
operators' licences etc. There is a very strictly defined
obligation with regard to maintenance because VOSA will carry out
inspections.
As far as company cars are concerned, the employer will have to
give guidelines to the employees as to the employer's maintenance
procedures. Normally these vehicles have service schedules
and they will go into a garage and be serviced by the
manufacturer's recognised service agent. If that is the case
then the employer can relax to a certain degree because although
they still retain the liability for managing health and safety,
they are entitled to assume that if there is a procedure in place
for maintenance and servicing that it is being followed.
There is also the issue of 'grey fleets'. Grey fleets are
vehicles that are used by employees and are provided by the
employer in a variety of ways. Firstly it could be a pool car
which traditionally is the least managed type of vehicle. Often the
employees have no obligation to maintain the vehicle. In such
a situation the employer has an absolute obligation to maintain it.
The other areas of grey fleets are 'cash for cars', which is where
the employer gives a cash allowance to the employee to go and
acquire a vehicle. In terms of the health and safety /
maintenance obligations there is no difference between that and a
company car so the employer's obligation remains. They must be in a
position to demonstrate that servicing is being carried out
properly if they are ever challenged by the authorities.
The final "grey fleet" group is employees using their own
vehicles for work purposes, often under expenses schemes. The
employer has no direct control over the vehicle but they still have
the same health and safety obligations and must put procedures in
place to ensure that the employee is maintaining the vehicle
properly. Often companies just get employees to sign a piece
of paper declaring that they have an MOT, have had the vehicle
serviced and hold a valid driving licence. In today's blame
climate this is not enough. Employers should periodically check the
documentation.
Does the employee have any responsibility for vehicle
maintenance?
In the case of company cars, 'cash for cars' and particularly
employee expenses schemes, the answer is yes - there is an
obligation on the employee to make sure the vehicle is
maintained. There is an obligation under H&S legislation
for an employee to look after their own health and safety.
The employee also has duties under Road traffic legislation.
What employers cannot do is assume that an employee knows how to
maintain a vehicle - training may be required. Most of us
know where the key goes and we know where the fuel goes and that is
often the sum of our knowledge.
So the advice to employers is to go further than just checking
the employee has a licence and the vehicle is MOT'd?
Not having a valid driving licence or MOT is not going to
prevent an accident. Not having the right driving licence is
a technical offence but in itself will not stop incidents occurring
from some technical fault in the vehicle. You have to make
sure that safety critical systems (such as brakes, steering and
tyres) are properly maintained.
Employers cannot assume that because the car is leased and
servicing is being taken care of by the leasing company then that
avoids responsibility. It helps that they have a system in
place but the employer must be an interactive part of that
process. Robust systems for checking safety critical systems,
especially for "grey fleets", is necessary, as is periodic checking
of leased car servicing documentation. Training in basic
maintenance may also be necessary for relevant employees.
Please read legal information.