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Factors
effecting HSE's Involvement in WRRTI
There appear to be three main factors that inform
HSE's position towards whether they will investigate
a WRRTI and, if they do, whether they will take any
enforcement action.
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Role
of the police and other investigative bodies
The
HSE has a policy of not enforcing health and safety
legislation where other more specific legislation
is enforced by another body. Para 5 of the HSE's
Operational Circular states:
| 5 |
The
general duties under health and safety at
work law to protect workers and others from
risks arising out of work activities are
very broad and overlap with other legislation
and are capable of application to work related
driving. It has been the policy of successive
Government’s that we should not generally
seek to enforce health and safety at work
legislation where public and worker safety
was adequately protected by more specific
and detailed law enforced by another authority.
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In
relation to WRRTIs - the relevant authority
is the police and VoSA. The police investigate
every road-traffic incident involving a death
or major injury. Not only are they investigating
the individual conduct of the individuals directly
involved in the incident, and can prosecute
under Road Traffic Legislation, they also enforce
legislation that has a wider safety perspective,
for example the Motor Vehicles (Construction
and Use) Regulations. In addition, the police
can investigate whether an employer has aided,
abetted, counseled or procured the commissioning
of most road traffic offences committed by employees.
And they can also prosecute an employer who
"by poor or [non-existant] scheduling procure
or incite their employees to exceed speed limits".
That
being said the HSE does recognise that there
are safety issues that the police are unable
to deal with - since they cannot enforce health
and safety law. So the Operational circular
goes onto say the following.
| 6 |
This
policy is not, however, intended to exclude
the use of health and safety legislation
in respect of all work-related road traffic
incidents. Where safety cannot be adequately
regulated by the enforcement of other more
specific legislation, such as the Road Traffic
Acts and the Motor Vehicles (Construction
and Use) Regulations, there may be a need
to use health and safety legislation, particularly
in the cases of serious management shortcomings,
e.g. failure to check driving licence validity
or encouragement of the use of mobile phones
while driving. |
In
effect, in policy terms the HSE wants inspectors
to ask themselves every time they are confronted
with having to make a decision about investigation
whether the particular work-related safety issue
has already been, or will be dealt, with adequately
by the police or other investigation, or is
there a safety management issue that only the
HSE can deal with.
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| 2 |
Impact
of HSE's Public Safety Policy
In addition, HSE's policy toward WRRTIs is informed
by its policy towards public safety. Employers
have duties under section 3 of the Health and
Safety at Work Act 1974 concerning the safety
of the public who may be affected by the employer's
activities. The HSE also have obligations to
enforce this duty. However, the HSE wants to
limit its involvement in the enforcement of
this section in relation to pure public safety
issues - that is to say where the safety of
workers is not impacted - to a minimum.
In
relation to WRRTIs this policy is significant
where the person who has died or is injured
as a result of such an incident is a member
of the public.
This
policy means that generally the HSE not start
to investigate injuries to non-employees,
or complaints about risks to non-employees arising
out of WRRTIs unless it is appropriate to do
so where initial inquiries, or information
from other sources, indicate that a breach
of section 3 HSWA was the probable cause of,
or a significant contributory factor to, the
injury or risk complained of, and:
- there was or is a high level of risk or
- HSE needs to act/investigate in the interests
of justice.
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| 3 |
Lack
of control by the Employer
The HSE is concerned that in many WRRTIs - the
employer has little control over safety issues,
and therefore it would be inappropriate for health
and safety law to be enforced. So for example,
if an employer has a system of banksman used in
the roads adjacent to the company, and a banksman
is killed in the course of this work, the HSE
accepts that in principle has a role in the investigation.
However, if a lorry driver, outside the immediate
vicinity of the workplace uses a banksman, in
an ad hoc fashion, and the banksman is killed
in an RTI, the HSE does not consider that it would
likely get involved since that the "activity
is laargely ad hoc and remote from employers/workplace
influence." |
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