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Published 26 June 2020
A recently completed prosecution by the Office of Rail and Road (ORR) emphasises the importance of employers managing their employees fatigue and shift patterns.
Renown Consultants, who provide welding teams to the UK’s rail services, were fined £450,000.00 and ordered to pay costs of £300,000.00 after being found to be in breach of the Health and Safety and Work Act by exposing their employees as well as members of the public to risks to their health and safety. The company was also found to be in breach of the Management of Health and Safety at Work Regulations 1999 by failing to carry out a proper risk assessment.
The prosecution followed after a van which was being driven by Renown’s employee Zac Payne, who was 20, fell asleep at the wheel and crashed into a parked articulated lorry on the A1 near Claypole in the early hours of the morning. Both Mr Payne and his colleague Michael Morris died in the fire which followed the collision, which was accelerated by the gas canisters they were transporting.
The Court heard how Mr Payne had started work at 4.30 am the day before the accident and he drove to Northumberland, arriving at 7.30 am. He then left for Doncaster at midday, arriving at 3.00 pm. He was then asked to take an overnight job in Stevenage, Hertfordshire, and he and Mr Morris then left Doncaster for Stevenage after 7.00 pm, arriving at the site shortly before 10.00 pm.
Mr Payne and Mr Morris worked from 11.15 pm until 3.40 am and the accident occurred at 5.30 am as Mr Payne was driving back to Doncaster.
It also transpired that despite the company’s policy that under 25’s should not be driving company vehicles, this was regularly flouted with the sentencing Judge noting that it was “common practice” for employees under this age to drive. The company did not carry out proper driver eligibility checks which meant that employees were driving without proper insurance cover being in place.
The Judge was also critical of the “lip service” paid by managers to the company’s written health and safety procedures and the “wilful blindness” shown by managers to the risks of driving to and from jobs.
It should be noted that the accident occurred in 2013 and so it took nearly 7 years for the initial investigation and subsequent prosecution to conclude.
Ian Prosser, HM Chief Inspector for Railways, said that while he hoped that the outcome of the prosecution would bring the families of Mr Payne and Mr Morris peace, also noted that this was the first time that the ORR has prosecuted in relation to failures of fatigue management. He also said that the outcomes showed “the fatal consequences that can occur when fatigue policies are disregarded” and that it should “act as a reminder to companies that safety comes first and fatigue policies should be enforced to ensure their workforce is not too tired to work.”
The case therefore emphasises the importance of employers understanding the risks of exposing their employees to long hours and extended shifts. Employers should ask themselves the following questions:
An important consideration for employers who operate vehicles under an operator’s licence is the interaction between their licence and the latent risks of fatigue demonstrated by this case. Of course, driver’s hours legislation tries to prevent such incidents, but if such an incident occurs, it is likely that the Traffic Commissioner will take great interest in internal policies and tachograph data.
Depending on the incident itself, and the undertakings on an operator’s “O licence”, it may be a Traffic Commissioner is independently informed of an incident by another agency, or that you as operator have a duty to report details of the incident and any regulatory action flowing from it to the Commissioner. Such reporting may lead to a “calling in” to face scrutiny at a Public Inquiry.
Operators should be mindful that at Inquiry Commissioners will often interrogate processes and procedures that may have led to any incident – which could lead to difficult questions concerning the approach of the operator itself, its transport manager or other staff. Furthermore, there is always the risk of an incident being used as a springboard to carry out a much wider inquiry into unrelated issues.
Of course, the risk at Inquiry is the sanction that can imposed – starting with a warning, to suspension, curtailment or even revocation of the O licence, up to disqualification from acting as a director. It is therefore crucial that employers/operators ensure their policies and procedures are up to date, followed diligently and are adopted as part of a “safety first” approach.
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