Prosecution puts spotlight on employee welfare

The successful prosecution of Renown Consultants Limited (Renown) by the Office of Rail and Road (ORR) before Nottingham Crown Court last month shows that regulators are increasingly examining employer's welfare management practices and their response to associated safety risks for both its employees and the general public.

The Renown case

In the first prosecution of its kind by a UK health and safety regulator, Renown was prosecuted and convicted for a specific failure to assess and manage workplace fatigue and for a failure to enforce its own fatigue policies. Renown is to be sentenced at a later date.

The prosecution arose out a fatal car accident on a public highway, caused when an employee driver fell asleep whilst driving. The driver, a trainee welder, was found to have exceeded the working time limits for safety critical work and the limits articulated in Renown's policies.

The significance of the case

The case demonstrates safety regulators' determination to ensure that employers take a holistic approach to their obligations in relation to health, safety and wellbeing, with each being properly considered in risk assessments and suitable provision put in place to mitigate potential areas of difficulty.

It also tells us that even in circumstances where employees are competent and operationally the systems of work are safe, where there are failures in respect of what would be considered as management of ‘welfare’ issues – such as fatigue, general wellbeing, mental health – this leaves the door open for charges to be laid in respect of those failures alone. 

Employers must remember that drivers' welfare and workloads should be carefully managed; failure to do so can have catastrophic personal consequences but may also lead to the prosecution and conviction of employers found to have been at fault. 

Whilst fatigue may have been a factor in poor safety management in other prosecutions, in those cases there have been other more obvious operational failures by defendants, such as failure to manage employee competence or unsafe systems of work.

Most enforcement in relation to fatigue has tended to be by bodies such as the DVSA where drivers have exceeded permissible hours under the respective EU or UK regimes.

In 2019, for example, Midland Red was convicted, and fined £2.3million, for failing to take reasonable care for the health and safety of its workers and others contrary to sections 2 and 3 of the Health and Safety at Work etc. Act 1974 (HSWA). The company was found to have not acted on substantive concerns regarding the health, fitness and ongoing capability of a driver, who, despite warnings, was permitted to continue driving. The driver, also convicted for a driving offence, fatally killed a passer-by and a passenger.

Where fatalities or serious incidents have occurred affecting or affected by those driving for work, such issues have generally been investigated and dealt with by the police as road traffic matters. It therefore represents an unusual step for a workplace regulator – a here the ORR – to identify and isolate failures by the employer in respect of welfare management in this way. The successful prosecution is likely to lead to increased scrutiny by other regulators, including perhaps the Health and Safety Executive (HSE) in the future.

This case is of significance not only because it represents a novel approach by a regulator to fatigue-management but because it is an indication that workplace safety regulators are likely to take a more involved approach to incidents taking place on public roads featuring corporate failures linked to the organisation's wider 'undertaking'.

Regulators are already making greater use of improvement notices in relation to specific welfare issues, where employers have, for example, failed to manage fatigue and stress in the oil and gas sector and the healthcare sector respectively.

Managing fatigue during the Covid-19 crisis

In the midst of the Covid-19 crisis, essential business and key workers are engaging in unprecedented efforts to keep the country safe and moving. Delivering such essential services inevitably gives rise to increased demands on key workers both in respect of longer hours, unusual shift patterns and increased night working.

Now more than ever it is imperative that employers recognise their health and safety obligations and ensure that workplace fatigue in particular is addressed.

Whilst specific industry regulators understand the need to take a more flexible approach during this period, safety regulators have made it abundantly clear that the welfare and specifically the fatigue of key workers must be appropriately managed. In cases stemming from driver fatigue specifically, employers can expect regulators to closely scrutinise their supervision and the enforcement of fatigue management policies even where, on face value, a case relates to careless driving.

Notwithstanding the current crisis, there is likely to be a piqued interest and enforcement appetite by regulators with respect to welfare issues when the country returns to business as usual.

It is important that employers appropriately assess this elevated risk and introduce controls to manage it appropriately.

Enforcement is likely to be concentrated in areas where employees are carrying out safety critical operations, where human error can have significant consequences and where there is sector specific guidance on the management of fatigue. 

In the context of all workplace incidents, where an incident arises from employee error in the context of otherwise exemplary health and safety management by an employer; it is imperative that any defence is not undermined by any failure to properly manage employee welfare – which may have caused or contributed to an incident.

This article was written by Kevin Bridges, Fiona Cameron and Simon Tingle; health and safety law experts at Pinsent Masons, the law firm behind Out-Law.