Managing the legal implications of work-related driving when employees use their own vehicles is often a thorny issue for HR and Fleet Managers.  Neil Everatt, CEO at Selenity, discusses the duty of care issues that UK employers using a  ‘grey fleet’ should be aware of. 

Employers across the country all have a legal duty of care to protect their employees from the risk of foreseeable injury, this includes making work-related journeys. As the British Vehicle Rental and Leasing Association (BVRLA) estimates there are 14 million grey fleet vehicles on UK roads, it’s important for employers to ensure that any work-related journeys are done in a safe and legal manner – this means anyone driving on company business, regardless of who owns the vehicle.

However, it’s no secret that the number of road fatalities in Britain reached a five-year high in 2016 and as the UK’s roads become busier, this could only intensify the issue. The Department for Transport’s annual report suggests that the main reason the UK has seen an increase in accidents and causalities lies with the growth of the economy, as it grows so do traffic volumes and this ultimately results in more accidents. With 11.8 million private sector and 2.2 million public sector grey fleet vehicles gearing up for journeys up and down the country each year, how can businesses ensure they carry out their duty of care and safeguard the health and safety of employees?

Current UK legislation for Grey Fleet employers

It’s a common misconception that drivers themselves are solely responsible for maintaining their vehicles and making sure correct tax and insurance are in place. In fact, this responsibility falls down to the employer. Recently road charity Brake urged the UK government to look more closely at providing and ensuring up-to-date driver information is readily available. Specifically, pointing to a ‘loophole’ where employers are not automatically told when employees lose their licence. As this information is not yet directly provided by The Department of Transport, duty of care is still with employers to check their employees’ licences regularly and the DVLA advises this should be done every three months.

This means regardless of whether a business has five or 5,000 employees, it’s the responsibility of the employer to gather and review documentation on all drivers making work-related journeys.  As well as checking driving licences and driving endorsements, it’s also important to inquire whether personal vehicles are taxed and roadworthy by reviewing MOT certificates. Additionally, for grey fleet drivers it’s essential to check insurance documentation to make sure employees are covered to make work-related car journeys. Ultimately, the reason for the journey is irrelevant, as at the very minimum employees should have Class 1 business insurance to cover their travelling during working hours.

Understanding the risks

Violation of this duty can leave businesses at risk of criminal prosecution, substantial fines and serious reputational damage. However, there are implications for the employee too, which include a roadside fine of £300 and six penalty points. If the case goes to court then there is an unlimited fine, driving disqualification and the vehicle could be seized and destroyed. The repercussions really put the onus on businesses to ensure that the correct policies are in place and properly followed. It’s quite common to find that there isn’t a person responsible for a company’s duty of care and that has to change. The law won’t favour one employee over another for failings like this and line managers, HR or finance professionals– even company directors – are all in line to foot the blame for the unsafe driving of their employees.

Going the extra mile

As previously mentioned the DVLA recommends checking employees’ licences every three months and does provide a manual lookup service to check which vehicles a driver is eligible to drive and identifies penalty points or disqualifications. Although, it can be an administrative burden to collect and collate all driver, vehicle, and insurance information, store it and update it annually.

However, the DVLA does allow third party organisations to source data from them to check driver details. So, it’s worth looking at technology providers who can offer this option and save the administrative burden. There are plenty of cloud-based solutions that would allow saving of miscellaneous documentation, and others that have dedicated Duty of Care functionalities. For instance, some expenses systems have mechanisms in place which restrict mileage claims until the correct documentation is provided This removes the headache of sorting through and filing paper documentation, instead it can be scanned, copied and saved onto the finance or HR system.

As well as having the right technology in place, businesses need to actively encourage road safety and make sure that policies are communicated to all employees. It’s not enough to have these policies in place, but still allow employees to take calls on the road without the correct in-car hands free technology or speed to meet tight schedules. With the UK’s roads now busier than ever, it’s increasingly important that before employees make any work-related journeys, businesses emphasise the importance of road safety and carry out the necessary checks on driving licences and grey fleet vehicles.

Greater Manchester Buses (South), better known as Stagecoach have been ordered to pay £41,000 to former employee Jayson Andrews after a tribunal ruled that former employee Jayson Andrews, who has a disability, suffered discrimination and harassment at their hands when his shift pattern affected his life-threatening condition.

Andrews resigned from Stagecoach, following what his solicitor said was ‘appalling treatment’ by the bus company after Andrews struggled to maintain regular attendance at the company’s Stockport depot due to the effects of his medication.

Leading Employment Solicitor Danielle Ayres of Gorvins Solicitors, who represented Andrews, assisted him in the claim for wrongful dismissal, disability discrimination and constructive unfair dismissal against his former employers in the Manchester Employment Tribunal.

After an initial hearing lasting 5 days, the Tribunal panel agreed that Mr Andrews was harassed and unlawfully discriminated against by Stagecoach and that they had breached their obligation to make reasonable adjustments to help and support Mr Andrews.

After a further hearing to decide on an appropriate remedy for Mr Andrews, the Tribunal awarded Mr Andrews just short of £41,000, with an injury to feelings award of £16,500.
The tribunal ruled that Mr Andrews should not have been given formal warnings about his sickness absence related to his condition, nor should he have been told that his job was risk if his attendance did not improve.

Stagecoach failed to support Mr Andrews by not providing him with a shift pattern or alternative work that would have enabled him to take his medication at set times each day and attend specialist clinic appointments. The judgement condemned Stagecoach management who insisted that Mr Andrews changed his medication so that his sickness absence levels would go down, saying he would otherwise face losing his job.

Stagecoach opposed Mr Andrews’ legal claims and placed him on cost warnings throughout the case, saying his claims had no merit and even asked his Unite Trade Union Rep to appear as a witness for them.

Andrews Solicitor, Danielle Ayres (above) welcomed the decision, saying:

“It is fantastic that the discriminatory treatment and harassment that Mr Andrews faced at Stagecoach has been recognised by the Tribunal.

For a long time he felt side-lined, dejected and alone due to them acting as if his condition was a burden to them. He was ready, willing and able to work, however, Stagecoach completely failed in their duty of care towards him.”

While a recent announcement that doctors and nurses will now be exempt from Tier 2 visa caps, enabling the NHS to recruit skilled professionals from overseas, many within the industry are concerned that a poor talent pipeline could lead to major skills gaps in the long term.

Specialist healthcare recruitment consultancy, Healthier Recruitment has warned that the breadth of career options within healthcare must be promoted to school and university leavers if we want to build a strong pipeline of UK healthcare talent.

Market analysis of the firm’s key specialisms has also identified the most sought-after clinical roles across the UK, most of which already feature on the Government’s current Shortage Occupation List (SOL).

1. Accident and Emergency Doctors – There is currently an acute shortage of doctors to work in A&E departments, which is highlighted in the current SOL. As such, permanent professionals with experience in this area are highly sought after.

2. Radiographers – HPC registered radiographers are in short supply nationally, with the Royal College of Radiologists (RCR) recently admitting that there is ‘no end in sight’ for the current staffing crisis. The organisation also revealed that the NHS spent nearly £88 million in 2016 paying for backlogs of radiology examinations to be reported – the equivalent to the salaries of 1,028 full-time consultants.

3. Mental Health Nurses – while the availability of permanent nursing talent across the board is notoriously sparse, experienced mental health nurses at band 5 and above are particularly sought-after. The Care Quality Commission has highlighted a crash in numbers over the past seven years as ‘underpinning’ a range of concerns facing the sector and we are currently seeing a boom in demand for ANP level professionals to be placed into mental health settings.

4. Occupational Health Nurses – We are currently seeing a rise in demand for occupational health nurses to work closely with employee line managers and HR professionals to promote good health in the workplace and reduce sickness rates. The shortage of candidates for these roles can be attributed to the fact that this route is not promoted as a viable career path.

5. Health Care Assistants – while HCAs are, in theory, relatively easy to source, finding the quality and volume of talent that trusts need at this level is a perpetual challenge for internal hiring managers. High levels of turnover exacerbate the situation, bogging down internal hiring managers whose time would be better spent on recruiting for specialist, niche roles.

Commenting on the shortages, Michael Johnson-Ellis, Managing Director at Healthier Recruitment, said:

“Local and national skills shortages mean that public sector organisations can struggle to recruit desperately needed healthcare professionals. However, while there are widespread perceptions that NHS trusts and other healthcare organisations must look to overseas to source the skills they need, we must begin by managing existing talent pools more effectively.

“For example, relying on temps and locums to fill positions better suited to permanent staff or those on fixed-term contracts erodes resources, while a failure to inspire and engage emerging talent pools will result in poor availability of skills moving forward.

“We must focus on creating a healthier NHS through best-practice workforce strategy. In order to advert ongoing skills shortages it is vital to combine efficient workforce planning in the short-term, and effective talent pipelining for the future.” 

New Research from Group Risk Development (GRiD), the industry body for the group risk protection sector, reveals that larger employers with over 250 employees have significantly more absence management issues than smaller businesses.

The study, which spoke to HR decision makers, reveals:

• Companies with over 250 employees have the highest absence rates – averaging 7.5 days per year.
• Micro businesses with between 1-9 staff only see their staff take an average of 2.8 days absence per year.

Worryingly, 5% of HR decision makers also admitted to not recording or monitoring absence at all.  This is more prevalent amongst SMEs (6%) than those with over 250 employees (1%), however this equates to nearly 300,000** businesses across the UK who have no way of measuring how often staff are off sick, whether they have a legitimate reason for being off work or whether specific individuals take more sick leave than others.

Furthermore, 55% of large businesses believe they have a higher sickness absence rate than their industry average, with 25% of these putting this down to ineffective absence management. This begs the question why they aren’t doing more to prevent it.

Katharine Moxham, spokesperson for GRiD, believes that one issue to explore is that many organisations may not know that support for employers, line managers and employees exists at no extra cost via group risk products (employer-sponsored life assurance, income protection and critical illness protection benefits). She said:

“Employers that get the most from their group risk products don’t simply rely on them for an insurance payment, but use the inbuilt services to help keep people at work and also to facilitate a quick return to work – even in cases where no claim is made.”

Day one intervention

GRiD also stresses that some group risk products offer ‘day one intervention’ meaning that employers get help to manage workplace absence and employees are supported from the first day they are off work.

GRiD also points out that, in many cases, absence issues are not clear-cut for an employer: a combination of issues can cause a member of staff to be off work, and each issue may require a slightly different type of help. Musculoskeletal conditions may benefit from fast access to physiotherapy. Other absentees may need a second medical opinion. Employees suffering from stress or mental health problems may benefit from fast-tracked access to talking therapies or from utilising an Employee Assistance Programme, as would someone struggling with relationship problems, addiction, childcare or eldercare responsibilities. All of this support can be made available within group risk benefits.

Moxham continued:

“No single organisation can expect to be an expert on every one of the issues its staff faces but, via the right group risk product, they can provide access to help, which can enable people to stay at or return to work, thus earning a salary and retaining a sense of normality.

“There are two sorts of communication strategies required here: the first is to make sure all staff know that support is available to help them stay in or get back to work. The second, which is often overlooked, is about how line managers can signpost their staff better to support and help the Board improve absence reporting and management.

“Keeping tabs on every single member of staff at a larger firm is by no means an easy feat – particularly for companies whose staff travel between or work in multiple locations. However, many of these companies may well already have group risk products in place whereby they can access support for individuals and the organisation as a whole, without requiring any additional expertise or spend.

“Where an organisation currently doesn’t buy in to group risk, we would certainly encourage them to consider it as, by offering such products to staff, management will benefit from an absence solution too.”