Listen as our workplace transport safety experts discuss some of the key transport safety risks and how businesses and operator licence holders can guard against them.
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Transcript
James Muller: Hello, and welcome to this Weightmans Safety Season of podcasts.
James: Please do remember to leave any questions you have in the comments. in our eighth and final episode, we will be answering some of your questions from throughout the series.
Tom Boulton: Hi. I'm Tom Boulton. I'm a regulatory solicitor and principal associate at Weightmans, specialising in health and safety law and regulatory compliance.
Tom: And prior to joining Weightmans in 2016, I used to prosecute on behalf of the Health and Safety Executive and various local authorities and I try and put that experience to good use when defending clients under investigation from regulators.
Tom: I'm joined today by my colleague, Chris Powell. Chris, would you like to introduce yourself, please?
Chris Powell: Yes. Hello, Tom. I am Chris Powell, as Tom said, I'm a transport regulatory lawyer. I specialise in advising and representing companies, transport companies and any other company that holds an operator's license involved in any regulatory proceedings in front of the traffic commissioner or DVSA. And I also do a lot of work in the compliance space for these clients, including training, compliance support, and the like. So, that's me. So, Tom, what are we going to be talking about today?
Tom: Thanks, Chris. So we're going to have a look at workplace transport and consider some of the challenges faced by employers and operators in maintaining workplace transport safety.
Tom: If we take a step back, vehicles at work continued to be a major cause of fatal and significant injuries. Being struck by a moving vehicle accounted for 20 fatal injuries to workers in 2023, representing 15% of the total number of work related deaths over the year. And when it comes to enforcement activity by HSE, workplace transport remains a priority.
Chris: So that's a very significant statistic, that 15%, very significant. So what are the key duties then that employers need to be aware of?
Tom: Thanks, Chris. Yeah. So it's important to bear in mind that all employers have a duty to ensure, so far as reasonably practicable, the safety of their employees and to ensure that non employees are not exposed to a risk of harm from the way a business is carried out, and failure to properly discharge these duties is a criminal offense, punishable by a fine for a company and or a potential prison sentences for directors or senior managers, and it's through this lens that we approach and examine workplace transport safety issues, and a key phrase from regulatory compliance perspective is reasonably practicable.
Tom: The Health and Safety Executive summarises reasonably practicable as weighing up a risk against the trouble, time, and money needed to control it. And this is a far from simple balancing exercise that requires care, thought and diligence to achieve.
Chris: So where should organisations begin to try and get compliant?
Tom: So the journey to workplace safety, starts with a risk assessment and to be able to identify the steps required to achieve safety, you first need to identify what are the risks within the workplace and who is exposed to them? And in respect of workplace transport safety, any risk assessments must start with examining where the transport activities take place, what vehicles operate at that location, who has access to that area and how can interaction between vehicles and humans within that space be properly managed and controlled to reduce the risk to persons to as low as reasonably practicable, and the HSE has produced some really useful guidance in respect of workplace transport safety.
Tom: One particularly useful piece of information is the HSE workplace transport checklist.
Chris: So how does that work?
Tom: So the checklist sets out a series of headline areas of examination and then asks questions of a dutyholder to help focus attention on key elements that must be considered, and a negative response to one of these questions could amount to an actionable failure. A few examples of the headline areas of examination include managing and supervising workplace transport safety, site layout and internal traffic routes, vehicle movements, coupling and uncoupling, loading and unloading activities and tipping.
Tom: Any dutyholder seeking to achieve regulatory compliance for workplace transport safety should be able to demonstrate that all these areas of examination have been considered, risk assessed and that appropriate action has been taken to manage the risks identified.
Tom: Whatever the size of the operation, it's very likely that some or all of these activities will take place at the sites.
Chris: So what are the key safety issues that you'd say operators and companies should be focusing on?
Tom: Thanks, Chris. Yeah. So from our own experience, the absolute fundamental issues for focused attention are segregation and supervision.
Tom: If people are segregated from moving vehicles, then they're far less likely to be exposed to a risk of injury from them. And this simple aim of elimination of the risk applies to all workplaces but it's particularly relevant to transport safety.
Tom: It's going to be very difficult to persuade a Crown Court judge that being hit by a reversing goods vehicle is unlikely to result in anything but death or severe injury.
Tom: In respect of supervision, This covers a host of separate actors. For example, your driver and non-driver staff, visitors, and third party contractors. The supervision also includes monitoring of behaviour.
Tom: We know that busy people will often take shortcuts and in workplace transport safety, that literally means shortcuts. People take the shortest route to get to their desired destination.
Tom: This may involve deviating from the designated walkways as set out by a diligent employer to ensure a person's safety.
Tom: Or driving across a pedestrian only area because it's the easiest way to get to where you want to go.
Tom: So monitoring behaviour, providing training, offer offering corrective support when it's required and, ultimately, enforcing your site rules and health and safety procedures are vital steps in creating and maintaining a safe and productive workplace.
Chris: So I imagine that risks associated with forklift trucks in particular are going to be a hot topic when it comes to workplace transport?
Tom: Yes that's right, Chris. So Weightmans' regulatory team have recent experience of dealing with a number of help and safety investigations involving forklift trucks in warehouse settings. Whilst being essential equipment in warehousing and storage facilities, forklifts can often also pose a significant risk to employees and non-employees when operated incorrectly and when safe systems of work are not followed.
Tom: Accidents involving forklifts can often be due to poor supervision and a lack of training employers are required to provide basic training and testing for all forklift truck operators and properly trained operators can reduce the risk of forklift truck accidents, in the workplace.
Chris: So what are the potential cost of getting this wrong and failing to comply with these regulations?
Tom: So as I mentioned earlier, failure to properly discharge these duties is a criminal offense and punishable by a fine for a company and or potential prison sentences for directors or senior managers.
Tom: In addition to the human cost following a serious incident, fines handed out in recent cases continue to demonstrate the strong and unwavering approach taken by the courts when it comes to sentencing health and safety offenses.
Tom: Judges appear to be increasingly comfortable with handing down very large fines following the introduction of the Health and Safety Sentencing Guidelines back in 2016.
Tom: For example, a recent investigation by HSE found a major transport firm had failed to manage the risks associated with workplace transport safety and it was hit with a fine well over a million pounds after a worker was tragically killed by an HGV when the vehicle reversed out of a parking space in the transport yard.
Chris: So what are the key messages then for companies listening to this podcast from your perspective?
Tom: So my key message for companies is to prioritise a culture of safety in your workplace.
Tom: Health and safety considerations in workplace transport can seem daunting, but breaking it down into parts and asking yourself, can we do that in a safer way is a great start to achieving safety success.
Tom: And of course, there's always a lot to consider when ensuring safety in a workplace transport setting but employers should look to prioritise the culture of safety as part of undertaking suitable risk assessments, providing training and implementing safe systems of work as part of their overall health and safety arrangements.
Tom: And in addition to any potentially serious human impact, companies need to be prepared and have appropriate systems in place. Otherwise, the penalties could be severe.
Tom: And finally, in the event of a significant instance, it's so important that employers seek early legal advice which is so often vital in shaping the response of an organisation.
Chris: So Tom, that's been really, really interesting. I think from my perspective, with my focus on transport regulatory matters, all of what we've been talking about on workplace transport has been touching upon the criminal proceedings, the role of the HSE, and the police, of course.
Chris: But I think it's important to bear in mind that there's also another regulatory jurisdiction here, the office of the traffic commissioner, who will be intimately involved in this area. So for example, if your business has been involved with a workplace transport incident, if there's been, god forbid, a fatality or similar, then not only will the HSE be involved not only could there be a conviction or criminal proceedings, but the office of the traffic commissioner will want to be involved as well, will want to know what effect this might have on your operator's license.
Chris: As an operator license holder, you've got a duty to make sure that your staff are well trained to make sure that your vehicles are fit and roadworthy and that you're complying with all the relevant government guidance. So a key part of that is load security, for example, only last year DVSA substantially revised their load security guidance as a direct result of a fatality caused by an insecure load and a subsequent, prevention of future death report released by a coroner. And so if your business has been involved in a load security incident, the traffic commissioner will want to know, well, what was your load security plan?
Chris: Like where were your risk assessments around load security so that everybody involved in the load security chain knew what was expected of them, had appropriate training, that training was being monitored and effectiveness was being monitored. Because at the end of the day, at the outcome of a criminal proceeding, a company can then find itself in a position where the traffic commissioner may wish to take action against his operator's licence going forward or against individuals or transport managers or directors involved in the management of that whole thing. So another part of that, of course, is reporting as operator license holders, operating heavy transport, for example, you have a duty to notify the traffic commissioner of relevant convictions and also other matters that could affect the company's good repute.
Chris: The issue there then, of course, is what happens, and where does the point of notification come in? Is it at the point of an incident taking place, or is it only at the point when the matter progresses to a conviction or when there's some evidence of culpability on the part of the company. So these are all things that operators would be well advised to get advice on.
Chris: I mean, only last year, I was involved in a case involving a public inquiry that was convened after a fatal workplace transport, incident, but which the company had failed to declare to the office of the traffic commissioner, but the traffic commissioner had found out via the Health and Safety Executive and also, unfortunately, via media and, and Facebook and online publications, which, which announced a conviction. So you're then in a situation where an operator is asked the question, well, how first of all, how did the workplace transport issue arise, where what did our management around that look like but also perhaps just as significantly, well, why didn't we comply with our duties to notify the regulator of this incident?
Chris: So I think my abiding message from the transport regulatory perspective, to complement what Tom's saying here is get that advice at an early stage because it isn't just, it's not something that you can easily consider just in isolation from the health and safety perspective only. Or from the employee's duty perspective or from the transport regulatory perspective. It's about looking at this holistically and making sure that you're taking the right steps at the right time. So, that's, that's been really very helpful Tom, I've really found it interesting hearing about your perspective from the workplace transport side.
Tom: Thanks very much, Chris.