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A company outside the transport business recently withdrew from staff contracts

23rd March 1995, Page 30
23rd March 1995
Page 30
Page 30, 23rd March 1995 — A company outside the transport business recently withdrew from staff contracts
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Which of the following most accurately describes the problem?

a clause insuring employees against injury when on company business away from the workplace.

Bearing in mind that companies have obligations to employees' safety set out in the Health and Safety at Work Regulations 1992 the decision raised the question "what is a workplace?". Is a lorry driver, who by definition spends most of the day away from his depot, in a "workplace" when sitting in his cab on the Ml?

The Department of Transport was unable to say whether a truck cab is a workplace. It says its role is to determine road safety regulations, such as drivers' hours and tachograph regulations, but safety within the vehicle as a "workplace" must be the responsibility of the Department of Employment.

"Have you asked the Department of Transport?," said a DoE spokeswoman, before suggesting a call to the Health & Safety Executive (which is an agency of the DoE).

Despite the DOT and the DoE being unclear whether a cab is a workplace, the Health & Safety Executive has no doubts. "The Health & Safety at Work Act 1974 applies to any situation where work takes place and so it clearly applies to people who drive vehicles," says a spokesman.

Section Two of the Act specifies that an employer has a duty of awe for its employees while they are at work: "This clearly applies to drivers or people loading and unloading vehicles." says the HSE.

However, a driver who takes the company vehicle home after work finishes may be driving into a grey area. At this point, the employer's obligations diminish and, even if an accident occurs because the vehicle is faulty, the driver could face a tough battle winning damages.

The Transport & General Workers' Union is convinced that a truck is a workplace and, to prove it, has won damages for thousands of injured lorry drivers. It currently has 2,407 claims which have yet to reach court against employers on behalf of injured drivers. They are claims against accidents which occurred on the highway and for which the union believes the employer bears responsibility "Up to a third of accidents are because of the condition of the vehi cle," says TGWU legal expert, Fergus Whitt): Damages can vary from a modest £1,000 to more than £100,000 in severe cases. Whitty says the Health & Safety at Work Act puts an obligation on employers to ensure drivers' safety while away from the depot.

The United Road Transport Union has 300 new cases of negligence filed against employers for this year alone. Some are seasonal, in which drivers have slipped on wet surfaces while loading or unloading tankers or tippers. URTU general secretary David Higginbottom believes employers could do a lot more to ensure the safety of drivers at work but would rather run the risk of damages than invest in safer equipment. Tankers, for example, should have guard rails to prevent drivers falling. "In these cases we intend to seek exemplary damages on the grounds that safety equipment is not being used when it is available." says Higginbottom.

Transport companies have little excuse to pretend they are not aware of their duties to care for their employees. Six European Community directives sparked off a series of new Health & Safety regulations in 1992. Many are relevant to the transport industry such as those dealing with manual handling and work equipment.

Every employer should have a copy of Management of Health & Safety at Work which sets out the employers and employees' basic obligations. At its core it orders employers to carry out an assessment of the "risks to the health and safety of employees to which they are exposed while at work." They must also assess risks to people not in their employment "arising out of or in connection with the conduct by him of his undertaking".

Owner-drivers are not exempt. As selfemployed people they must carry out exactly the same risk assessment procedure relating to their safety and that of others. Where more than five people are employed, the "significant finds" of any assessment must be recorded.

Do it now—don't wait until a transport union takes you to court and proves your safety procedures are as full of holes as a fishing net.

by Patric Cunnane


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