According to the Department of Transport more than a quarter of all road traffic incidents may involve somebody who is driving as part of their work. In 2013 there were 1,713 deaths on UK roads. This figure equates to well over 400 work related road deaths for that year ie more than three times greater than the 133 workplace fatalities recorded by the Health and Safety Executive (HSE) for 2013/2014.
HSE has published guidance entitled Driving at work – Managing work-related road safety (April 2014) http://www.hse.gov.uk/pubns/indg382.pdf . The guidance points out that the Health and Safety at Work etc Act 1974 applies to on-the-road work activities as does the Management of Health and Safety at Work Regulations 1999, which requires suitable and sufficient assessments to be undertaken of work risks. It warns:
“If one of your employees is killed, for example while driving for work, and there is evidence that serious management failures resulted in a ‘gross breach of a relevant duty of care’, your company or organisation could be at risk of being prosecuted under the Corporate Manslaughter and Corporate Homicide Act 2007.”
Driving at work advocates that employers consider the driver, the vehicle and the journey when assessing the risk. While it may be relatively straight forward to put in place vehicle maintenance programmes and driving competence assessments, managing employees out on the road is far more challenging.
Companies are increasingly turning to ‘telematics’, a generic term used to describe various types of devices fitted to vehicles to monitor its location and the way it is being driven. However with the collection and retention of data come issues of privacy and how that information is used. So, what do employers thinking about using telematics need to consider?
Telematics
This technology is usually contained in a device fitted to a vehicle (a ‘black box’) or is embedded in software of another device in the vehicle eg SatNav. More recently it has been possible to deliver telematics via an app for a smartphone (which means the driver has to take the phone on the journey and switch the app on when driving).
Telematics fall into two broad types: Journey Data Recorders (JDRs) and Event Data Recorders (EDRs). Both monitor the journey throughout but while JDRs record the whole of the journey EDRs only record data when there is an ‘event’, such as sharp braking, that exceeds set parameters. Some systems can provide an external view of the road and driving conditions and an internal view showing the driver.
Telematics enables employers to monitor the driving performance of their employees, provide feedback to them and identify training needs as well as improve journey planning and productivity. The usual experience of companies that have adopted telematics is that employees automatically change their on-road behaviour. This has can lead to reductions in accident rates, fuel consumption and wear and tear on vehicles. Additionally the application of telematics may result in lower insurance premiums.
Legal Issues
The telematics data produced will be subject to the Data Protection Act 1998. This has rules about how and when data is collected, handled and shared. It also gives rights to employees to access the information collected upon them and compensation if employers do not deal with the data correctly.
The concerns of employees are usually the security of the telematics data and its use within the organisation. Difficulties often arise where a vehicle is used out of hours (eg a company car or an employee’s own car used for business). Most devises come with a privacy button, which can limit when information is collected.
The Information Commissioner’s Office (ICO), the UK’s independent body set up to uphold information rights has published an Employment Practices Code which includes a section on monitoring at work. The Code sets out a number of steps including:
– Detailing the type and scope of the information to be collected
– Ensuring employees are aware of the monitoring;
– The rules and standards that the information will be used to enforce;
– Informing the employees why the monitoring is taking place and confirm that it will only be used for this purpose;
– Ensuring the data is stored securely.
A telematics policy is therefore essential and must be provided to employees and adhered to (see below). Employers also need to ensure that they only collect the information they actually require – ‘function creep’ can be a problem as upgrades to the system result in companies unwittingly collecting more data than they require.
A failure to comply with any of the eight processing principles in the Data Protection Act 1998 or the privacy rights in the Human Rights Act 1998 (which includes the work environment) could give rise to a number of actions including a constructive dismissal claim.
Policy
The types of matters that need to be considered for inclusion in a policy include:
– An explanation of the data being collected and how it will used ie to manage the risk
– The benefits to the company and the benefits to the employees
– The data will not be disclosed to a third party unless consent/required by law
– That information can be challenged by employees
Managing the risk
Telematics is not a solution in itself. What it does is to provide enhanced management information to enable better management of significant aspects of the risk. Companies need procedures and systems in place to address the issues that are brought to their attention through telematics. The danger is failing to act on that information.
By being able to monitor the way in which employees drive can assist in identifying unsafe practices and the need for training and guidance. However, if an employee continues to drive unsafely then it may be necessary to go down the disciplinary route. This may require amending the disciplinary procedure to include such behaviour amounting to misconduct and possibly (depending on the extent of the departure from normal driving standards) gross misconduct. By making employees aware of such action and sanctions, this is likely to help businesses manage their duty of care to employees, the public and the risk to their business reputation.
If an employee is involved in a collision then the telematics data will be central to the company’s accident investigation. This may not only lead to safety improvements but may provide useful evidence in defending third party compensation claims or responding to a police/HSE investigation.
Closing thoughts
For many businesses driving is the biggest health and safety risk that their employees face. But despite this it is often the risk that is overlooked or given the least attention.
While in the past employees have viewed the technology with suspicion as ‘Big Brother’ or the ‘spy in the cab’ attitudes are changing, particularly amongst the young who are more accepting of this type of application. Critical to the successful introduction of telematics is clear and open communication with the workforce to explain the benefits for both employer and employee.
As telematics become cheaper and more accessible it is likely that in a few years time its use will become the norm for managing work related road risk. Therefore in order to stay ahead of the curve now is the time for organisations to start thinking about its introduction into their business.
Article by Noel Deans and Mike Appleby of Bivonas Law originally published by Insurance Day at https://www.insuranceday.com/
According to the Department of Transport more than a quarter of all road traffic incidents may involve somebody who is driving as part of their work. In 2013 there were 1,713 deaths on UK roads. This figure equates to well over 400 work related road deaths for that year ie more than three times greater than the 133 workplace fatalities recorded by the Health and Safety Executive (HSE) for 2013/2014.
HSE has published guidance entitled Driving at work – Managing work-related road safety (April 2014) http://www.hse.gov.uk/pubns/indg382.pdf . The guidance points out that the Health and Safety at Work etc Act 1974 applies to on-the-road work activities as does the Management of Health and Safety at Work Regulations 1999, which requires suitable and sufficient assessments to be undertaken of work risks. It warns:
“If one of your employees is killed, for example while driving for work, and there is evidence that serious management failures resulted in a ‘gross breach of a relevant duty of care’, your company or organisation could be at risk of being prosecuted under the Corporate Manslaughter and Corporate Homicide Act 2007.”
Driving at work advocates that employers consider the driver, the vehicle and the journey when assessing the risk. While it may be relatively straight forward to put in place vehicle maintenance programmes and driving competence assessments, managing employees out on the road is far more challenging.
Companies are increasingly turning to ‘telematics’, a generic term used to describe various types of devices fitted to vehicles to monitor its location and the way it is being driven. However with the collection and retention of data come issues of privacy and how that information is used. So, what do employers thinking about using telematics need to consider?
Telematics
This technology is usually contained in a device fitted to a vehicle (a ‘black box’) or is embedded in software of another device in the vehicle eg SatNav. More recently it has been possible to deliver telematics via an app for a smartphone (which means the driver has to take the phone on the journey and switch the app on when driving).
Telematics fall into two broad types: Journey Data Recorders (JDRs) and Event Data Recorders (EDRs). Both monitor the journey throughout but while JDRs record the whole of the journey EDRs only record data when there is an ‘event’, such as sharp braking, that exceeds set parameters. Some systems can provide an external view of the road and driving conditions and an internal view showing the driver.
Telematics enables employers to monitor the driving performance of their employees, provide feedback to them and identify training needs as well as improve journey planning and productivity. The usual experience of companies that have adopted telematics is that employees automatically change their on-road behaviour. This has can lead to reductions in accident rates, fuel consumption and wear and tear on vehicles. Additionally the application of telematics may result in lower insurance premiums.
Legal Issues
The telematics data produced will be subject to the Data Protection Act 1998. This has rules about how and when data is collected, handled and shared. It also gives rights to employees to access the information collected upon them and compensation if employers do not deal with the data correctly.
The concerns of employees are usually the security of the telematics data and its use within the organisation. Difficulties often arise where a vehicle is used out of hours (eg a company car or an employee’s own car used for business). Most devises come with a privacy button, which can limit when information is collected.
The Information Commissioner’s Office (ICO), the UK’s independent body set up to uphold information rights has published an Employment Practices Code which includes a section on monitoring at work. The Code sets out a number of steps including:
– Detailing the type and scope of the information to be collected
– Ensuring employees are aware of the monitoring;
– The rules and standards that the information will be used to enforce;
– Informing the employees why the monitoring is taking place and confirm that it will only be used for this purpose;
– Ensuring the data is stored securely.
A telematics policy is therefore essential and must be provided to employees and adhered to (see below). Employers also need to ensure that they only collect the information they actually require – ‘function creep’ can be a problem as upgrades to the system result in companies unwittingly collecting more data than they require.
A failure to comply with any of the eight processing principles in the Data Protection Act 1998 or the privacy rights in the Human Rights Act 1998 (which includes the work environment) could give rise to a number of actions including a constructive dismissal claim.
Policy
The types of matters that need to be considered for inclusion in a policy include:
– An explanation of the data being collected and how it will used ie to manage the risk
– The benefits to the company and the benefits to the employees
– The data will not be disclosed to a third party unless consent/required by law
– That information can be challenged by employees
Managing the risk
Telematics is not a solution in itself. What it does is to provide enhanced management information to enable better management of significant aspects of the risk. Companies need procedures and systems in place to address the issues that are brought to their attention through telematics. The danger is failing to act on that information.
By being able to monitor the way in which employees drive can assist in identifying unsafe practices and the need for training and guidance. However, if an employee continues to drive unsafely then it may be necessary to go down the disciplinary route. This may require amending the disciplinary procedure to include such behaviour amounting to misconduct and possibly (depending on the extent of the departure from normal driving standards) gross misconduct. By making employees aware of such action and sanctions, this is likely to help businesses manage their duty of care to employees, the public and the risk to their business reputation.
If an employee is involved in a collision then the telematics data will be central to the company’s accident investigation. This may not only lead to safety improvements but may provide useful evidence in defending third party compensation claims or responding to a police/HSE investigation.
Closing thoughts
For many businesses driving is the biggest health and safety risk that their employees face. But despite this it is often the risk that is overlooked or given the least attention.
While in the past employees have viewed the technology with suspicion as ‘Big Brother’ or the ‘spy in the cab’ attitudes are changing, particularly amongst the young who are more accepting of this type of application. Critical to the successful introduction of telematics is clear and open communication with the workforce to explain the benefits for both employer and employee.
As telematics become cheaper and more accessible it is likely that in a few years time its use will become the norm for managing work related road risk. Therefore in order to stay ahead of the curve now is the time for organisations to start thinking about its introduction into their business.
Article by Noel Deans and Mike Appleby of Bivonas Law originally published by Insurance Day at https://www.insuranceday.com/
