Glasgow Bin Lorry Enquiry Raises Issues About Driver Safety In Employment
29 Mar 2016 – Employers should carry out pre-employment checks on fitness to drive
Fitness to drive assessments … Are your drivers medically fit?
The recent fatal accident inquiry into the Glasgow refuse truck crash which killed six people heard that the driver was unconscious when his lorry veered out of control. The driver’s health was central to the inquiry. The incident raises important issues for businesses employing drivers, especially in the light of the alarming statistic that between 25 and 33 per cent of all road traffic accidents involve somebody who was working at the time.
Driving is the single most dangerous activity employers ask employees to do. Focusing on safety is not a choice, it’s a necessity. Employers owe a duty of care not only to employee drivers, including self-employed and agency drivers in many cases, but also to others who might be put at risk by work-related driving activites. This can include other road users such as pedestrians.
All drivers must confirm they are medically fit when applying for their first driving licence. Fleet drivers must meet more stringent rules, relating to speed limits, rest periods, the condition and maintenance of their vehicle and so on, depending on what vehicle they drive. Law enforcement and government agencies monitor compliance with these rules to reduce the risk of accidents caused by driver error. Crucially employers have to rely on a driver’s honesty in disclosing relevant medical history. The Glasgow lorry driver had suffered fainting episodes since 1976, but this was not known until the inquiry.
So what can employers do to minimise risks?
When taking on new drivers they can use the Access to Medical Reports Act 1988 to request a report from a medical practitioner (normally the candidate’s GP) on a prospective employee. The GP is obliged to reveal relevant medical information, provided the individual consents.
It is unlawful under the Equality Act 2010 for a company to ask job applicants about their disability or health until they have been offered a job. However, health questionnaires and occupational health reports that relate to the candidate’s ability to carry out a function that is intrinsic to the job are permitted. In this context, referrals must be limited solely to establishing whether the employee is fit to drive and hold an appropriate licence.
Employers could independently verify any declaration of good health by requiring candidates, whether recruited directly or via an agency, to complete a health checklist that discloses any medical history that might affect their ability to drive. This might include a ‘fitness to drive licence’, signed off by the candidate’s GP, in advance of any job application. The company would ask the GP to confirm that the individual’s full medical history has been checked. Any job offers would be made subject to a satisfactory medical report.
For drivers already employed by the business, a company can request a medical report from the employee’s GP or a report from occupational health. Employers can also carry out regular health assessments to ensure that employees remain fit to drive, thereby reducing the risk of any relevant condition going unnoticed. How frequent these should be would depend on the driver profile, type of vehicle and size of fleet involved.
It is crucial to have a joined-up approach between occupational health, HR and management towards these responsibilities. For example, in obtaining a medical report, an employer must comply with the Data Protection Act 1998, while the Equality Act 2010 prevents discrimination against potential and/or current employees based on a ‘protected characteristic’ including disability. Where a medical issue raises a question over an individual’s ability to drive, employers may be under a duty to make reasonable adjustments if the employee is disabled, including considering whether he or she can be accommodated in a non-driving role if adjustments are not possible to their existing one.
Incorporating medical checks into the recruitment process and enforcing regular health assessments will give companies greater control and certainty that employees are fit to drive. Such action should be approached in a positive manner – not only to support employees but also to ensure, as far as possible, the safety of the public.
Radd Seiger and Fiona Morgan are both partners at law firm Kennedys