The death in 2005 of 23 year-old Trinity Taylor, whose car was crushedin a collision with a text-messaging lorry driver delivering Jacuzzis,made national headlines. It occurred despite the Government raisingsentences from two to six years in 2003 for manslaughter caused bytexting or speaking on mobile phones while driving. The public demandedaction, which came in February 2007 with the introduction of a completeban on the use of handheld mobiles while driving. But later this summercomes a piece of legislation that businesses would be unwise to ignore -the Corporate Manslaughter and Corporate Homicide Act (CMCHA).
Under the provisions of this Act, it will be employers who could nowshare the burden of responsibility for any deaths caused by theiremployees going about their daily work. Even if, for example, anemployee's in-car mobile phone has a legally compliant cradle (as in thecase of Trinity Taylor's killer), employers could be held responsible ifit can be proved that the driver's activities are the result ofprocesses, laid down by senior management, that the driver is expectedto follow, such as checking in every few hours, or responding to textsstraight away.
For fleet managers the bill will substantially alter any denial of blamethat may or may not be made in cases where accidents happen. The keywording is the 'senior management' who 'play significant roles in themaking of decisions about how the whole or a substantial part ofactivities are to be managed and organised'. Craig Blakemore, commercialdispute resolution partner at law firm Mace and Jones, says: "The ethosof the new law is the notion of 'management failure' and 'organisationalfault'. As a result it is envisaged that it will be much easier forprosecutions to be brought against companies."
The challenge the CMCHA is already presenting has been revealed in a newsurvey on employer and driver attitudes to road safety commissioned byBMW fleet company Alphabet. It shows that although 79% of fleetdecision-makers now agree that road-safety concerns are a 'pertinentissue', they can be found wanting when it comes to taking practicalsteps to ensure it. For example, CMCHA could affect companies if theyfail to ensure their fleet vehicles are regularly inspected, yet only anastonishing 3% of responding firms actively carried out regular vehiclechecks. Moreover, only 5% admitted they carried out licence andinsurance checks.
According to Alphabet's marketing manager, Amanda Philp, the statisticspoint to one conclusion: fleet decision-makers are simply nottranslating their good intentions into action. "Many firms just have'tick the box' policies - those that will be put onto the intranet, butnothing more fundamental will be done about them," she says. "It's justnot enough. As a minimum starting-point fleet managers need to getdrivers to say they have read and understood comp-any policy to ensurean audit trail. It may be a small change, but this and issues such aslicence-checking are the most fundamental.'
According to Alphabet, only 40% of employers create a paper trail fordrivers, a failing that is both contrary to Health and Safety Executive(HSE) guidelines and of course hugely undermining to any duty-of-caredefence.
How CMCHA will play out in practice might not be obvious until the firsttest case but, in theory at least, the new provisions will simplify theprocess necessary to prove a gross breach. Presently, the prosecutingauthorities have to show negligence on the part of the 'directing mindof the company' - an individual, normally a senior director. This has sofar tended to cause manslaughter prosecutions to falter, as theactionable decisions are often taken lower down the managementstrata.
Figures on work-related driving deaths exemplify why as, Alphabet'sPhilp says, a "cultural change needs to take place". The Royal Societyfor the Prevention of Accidents (ROSPA) estimates that up to one-thirdof the 3,000 deaths on the UK's roads each year involve people drivingfor work.
"More workers are killed on Britain's roads than in other accidents,"explains ROSPA's occupational safety adviser, Roger Bibbings. Butdespite the numbers, he says, too many firms are failing to adopt acomprehensive risk management approach and are falling well below goodpractice recommendations on health and safety - an attitude he describesas "self-defeating".
After all, he continues: "The business case is compelling. Not only willemployers secure themselves against costly prosecution, but a roadworthyfleet and safe drivers cuts costs."
The wake-up call has been heeded by companies such as hospitality firmWhitbread. It has recently employed GE Commercial Finance Fleet Servicesto provide a service that links accidents to risk management.Whitbread's fleet manager, Nigel Trotman, explains : "We have chosen tomake a significant investment in the road safety of employees, with theaim of driving down accident rates, damage costs and broader businessimpacts."
But Trotman admits that licence-checking and driver-training are, atpresent, only available for company car drivers. Whitbread is not alone.Alphabet estimates that more than a million non-company car or cash-optout drivers may drive regularly on business without a comprehensiveaudit trail.
A solution both Trotman and Bibbings support is employer-led incentivesfor safe driving. However, ROSPA figures show only around 10% ofemployers offer such reward schemes.
Andy Leech, business leader at fleet software provider CFC Solutions,says the lack of incentives for safe driving is symptomatic of the waythat cars are often sold to employees as sticks rather than carrots:"Fleets almost entirely use employee disincentives rather thanincentives," he says. "This is indicative perhaps of HR attitudes tofleet in general." GE Fleet Service's commercial leader, Gary Killeenadds: "Any incentive system has to be simple, measurable and easilyunderstood. Many fleets simply do not have the historic risk managementinformation to allow them to put a system in place."
Incentives or not, there is broad agreement that there needs to be afundamental change in the way businesses consider the overall costs andbenefits of road safety. "The challenge here is to create a culturalchange where the promotion of safer driving becomes embedded," arguesKilleen.
Paul Jackson, managing director of fleet company The Miles Consultancy,agrees: "It's madness that when a new employee starts at a company, theyare given extensive training on how to use their new laptop, yet notraining on how to drive their 20,000 vehicle, which is capableof killing someone."
Jackson believes proficiency tests and assessments should be carried outfor all drivers. "This is especially true if the driver is thought to bedoing more than 10,000 miles per year on business." Indeed, Jackson,highlights one point underscored by the Alphabet report that only athird of company drivers said they were subject to policy restrictionson driving hours and, of them, only one-fifth said their company'srestrictions made any difference to the amount of miles they drove.
The bad news for fleet managers is that even fewer drivers seem to agreethat mobile phone restrictions will stop them from picking up calls. Ashocking 80% of owner-drivers admitted to Alphabet that they ignoredrestriction policies, and the law. Jackson believes too many businessesturn a blind eye, arguing: "A sales person won't want their mobileswitched off for two hours while driving in case they miss a sale."
But, as Leech adds, and as the law will soon insist, non-compliance is afailing not just of the individual, but of managers from the top down:"It's relatively easy to write a risk management policy," says Leech."If directors don't take the issue seriously, then little more than lipservice will be paid to this."
For more information ROSPA Road Safety Guidance:http://www.rospa.com/roadsafety/resources/employers.htm HSE Road SafetyGuidance: http://hse.gov.uk/roadsafety/index.htm.
The small business A fleet could become too much of a liability
Many firms, and especially SMEs, will have to assess how the newCorporate Manslaughter and Corporate Homicide Act will affect them.Liverpool-based Kenyon Fraser PR runs a fleet of 10 vehicles. Asmanaging director Roger Kenyon admits, he fears that the implications ofa tougher road-safety regime will make the fleet too much of aliability. He says he also has concerns for his fleet about proposalsbeing discussed in Parliament at the time of going to press, to enforceconvicted companies to disclose manslaughter incidents and the measuresbeing taken to prevent repeats. "We want to be as safe as possible, butif the law becomes too onerous and creates too much red tape we'd haveto reconsider whether it's worth it," he says.
HOW TO STAY WITHIN THE LAW
- Check that any private vehicle being used on company business iscorrectly insured for 'business use'. If not, the vehicle may only becovered while the employee is commuting to and from home, and not forany travelling required by the job.
- Ensure that all vehicles are roadworthy and have current MOTcertificates, if appropriate. To this effect, employers should monitorthat all drivers carry out regular maintenance checks on oil, water,washer fluid, tyre pressure and tread depth - simple procedures thatcan, if neglected, make a vehicle dangerous. Servicing schedules shouldbe adhered to, and monitored by management.
- Raise employee awareness of developments that affect drivers, such asthe recent increase in penalties for using mobile phones. Alert themalso to activities that might cause the driver not to give fullattention to the road: eating, drinking, combing hair or smoking.Similarly, drivers should be told to take breaks every two hours.
- Check that employees hold valid and relevant licences. This may seemself-evident, but the law can be breached if employees only holdprovisional licences, or drive a goods vehicle on a car licence. Ensurealso that drivers are qualified to the right standard for theirparticular vehicle.
Source: Mace and Jones
THE FLEET PROVIDER'S VIEW - TWO AREAS OF CONCERN
Opt-out drivers
According to Shaun Barritt, managing director of vehicle contract hirecompany Grosvenor, the new law also applies to 'opt-out' drivers - thosewho don't have a company car, but instead use their own for companybusiness.
Grosvenor has recently developed Go4, an online risk-management toolspecifically for opt-out drivers to maintain legally required 'audittrails'. He explains: "Opt-out drivers need to conform to the samelegislative rulings as fleet drivers. Their vehicles, servicingschedule, tyre checks, insurance, licences, road tax and training needsmust all be assessed and monitored to ensure compliance withduty-of-care guidelines.
"This process can be a headache," he adds. "It's confusing,time-consuming and offering many pitfalls for oversights and omissionsby those managing the corporate fleet."
Vehicle tracking
Tony Neill, vice-president EMEA, Navman Wireless Business Solutions,which produces driver behaviour data, says employers must now captureinformation on how long their employees have been driving for, at whatspeed, and what breaks they have or haven't had. "Managers can nowmonitor working hours data, driver behaviour and assess risks by runningoff speed analysis reports that will tell them how much time individualdrivers have spent travelling within specified speed parameters.
"Many businesses have failed to recognise the perils of not implementinga road risk reduction programme," he adds. "Duty-of -careresponsibilities in this arena should now move even higher up thebusiness agenda."
