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Crisis management – key issues for the employer

Tragic incidents such as the Glasgow bin lorry crash highlight the myriad of issues that an employer has to deal with in the wake of a major incident involving one of its employees; issues such as employment recruitment practices, health and safety and even criminal prosecutions typically have to be addressed.

One of the key employment issues arising out of the Glasgow bin lorry crash was that the driver of the vehicle had an undisclosed history of medical problems. Certainly the question of pre-employment medical checks is a vexed one and with the risk of disability discrimination if the wrong questions are asked for the wrong reasons, employers are understandably cautious. This does not mean that medical checks cannot or should not be used. Ascertaining someone’s fitness to carry out a role requires an assessment of their physical and mental capability, especially where the role is high risk or could potentially have an impact on the health and safety of others. This has been recognised for some time in areas such as manufacturing and engineering where employees may be working with heavy machinery or chemicals. For jobs with a less pronounced requirement for physical exertion or less obvious risk medical checks typically involve only a basic questionnaire asking for disclosure of any medical condition.

A failure to disclose key information may lead to disciplinary action or dismissal if it later comes to light although it is important that the employment contract and staff handbook make clear that this will be the sanction applied to wilful non-disclosure. Consequently, businesses that employ individuals in roles which have the potential to impact on others, whether colleagues or the public, should consider carefully whether there is a genuine need for a higher level of medical checks at the outset of employment. This may involve a report from the employee’s GP, or an examination by an occupational health practitioner who is familiar with the requirements of the job. Remember, employers are permitted to seek such information where they can justify the need for it.

The individual in question has to consent to any such medical information being provided. If they refuse to consent, the potential employer should discuss with the individual the reasons for requiring the information. If the individual still refuses it is up to the employer to decide whether they wish to take the risk and continue with the employment process or whether to cease the recruitment as a result. In either case, clear notes should be made to record the reasons for the decision.

The health and safety aspects in relation to a major incident are also an area that employers need to manage. Following the introduction of corporate manslaughter legislation in 2008 (the Corporate Manslaughter and Corporate Homicide Act 2007) the police have become much more aware of wider health and safety duties owed by employers. It is now well recognised that the “workplace” can and often is wide enough to include roads and a significant number of road traffic collisions (RTCs) involve somebody who is “at work”. This has resulted in increased scrutiny of RTCs, particularly those involving fatalities. The investigation into such an incident is no longer limited to just the scene but where it is found to involve somebody who is at work, it will extend ito the wider business and the management of the organisation that the injured party worked for.

Employers owe a duty of care not only to their employees but to people not in their employment who may be affected by their work activities. Where the police and/or the Health and Safety Executive (HSE) can establish a failure in that duty serious consequences can follow such as criminal prosecution.

The Crown Prosecution Service provides guidance to police on when they should consider charging operators or their directors for corporate or individual manslaughter and they specifically advise that corporate or individual responsibility for death may arise where:

- An operator has no regular system of preventative checks showing an indifference to an obvious risk or injury;

- A company director knows about a defect in a vehicle but allows it to go onto the road before it is repaired;

- An operator fails to ensure that drivers work proper hours and have appropriate rest periods.

However, even where the threshold for manslaughter charges is not reached there is a raft of health and safety legislation under which the police/HSE may bring charges. With the new sentencing guidance coming into force for health and safety offences in early 2016, vastly increased fines are going to become the norm.

The final twist in the tale is, of course, the risk that an employee may end up facing a criminal or private prosecution for dangerous driving. This is driving that falls far below the standard of a careful and competent driver and is obviously dangerous. It could include situations where a motorist knowingly drives a defective vehicle or drives with a known medical condition that can cause them to not be in proper control of their vehicle. The law is clear on this point; a driver must tell the DVLA if he/she has a driving licence and develops a ‘notifiable’ medical condition or disability (such as epilepsy, strokes, visual impairments, blackouts etc.) or has a condition or disability which gets worse after the licence has been obtained.

Such situations obviously have an impact on the employment relationship. A criminal prosecution may sometimes result in the employer being asked not to take any internal action until after the trial to avoid any prejudice to the fairness of the trial. If the employee’s job revolves around driving or driving is an essential component then this can raise questions of redeployment or even the employee’s fitness to carry out the role pending completion of the criminal proceedings. Employers may also find themselves as witnesses in such proceedings to attest to the employee’s failure to disclose the relevant medical information in the first place. There may also be a need or desire to provide pastoral support to the employee throughout the criminal proceedings.

If the employee avoids criminal charges, the victims of an accident may pursue personal injury claims against the employer on the basis of vicarious liability for the actions of the employee. The employee might also be named as defendant if there was a concern as to whether the principle of vicarious liability would apply. With reference to a situation akin to the Glasgow bin lorry case, the defendants could seek to rebut the inference of negligence by arguing that the accident was ‘inevitable’. To sustain that argument they would have to do either of the following:-

• Show the cause of the accident and that the result of that cause was inevitable; or

• They must show all the possible causes, one or other of which produced the effect, and must further show with regard to every one of the possible causes that the result could not have been avoided.

In practice, the courts are cautious in accepting this type of defence not least because the driver and his employer would need to demonstrate that despite taking all reasonable precautions, the accident was inevitable.

In the alternative, if the employee driver had developed an illness that was wholly beyond his control he could argue a defence of automatism. Again the burden would be on the employee and employer to prove that there was both a total loss of control as well as an absence of fault in the events leading up to the total loss of control.

In order to protect an employer’s position as far as any potential criticism or charge is concerned, we recommend that in addition to regular driving licence status checks, employers also obtain a signed declaration from their employees to self-certify on an annual basis that they are fit to drive, that all notifiable conditions have been reported to the DVLA and/or that there has been no change to their health that would affect his or her ability to drive. Whilst not fool proof, these measures may assist the employer in showing that they took all reasonable steps to protect the wellbeing of their employees and the wider public.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further