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Company fined £2.3 million due to "missed opportunities": A lesson to all about heeding warning signs over employee behaviour.

13 December 2018
Regulatory Compliance
A midlands bus company has been fined £2.3m after one if its drivers crashed into a supermarket building, killing a pedestrian and a seven year old child on board.

It was found that the driver had lost control of the vehicle, having mistaken the accelerator for the brake. Discovering that this wasn't the first incident involving this driver, the attention of the Health and Safety Executive turned to the responsibilities of his employer, Midland Red (South) Ltd. The crux of the case against the company was that it had failed to heed the warning signs that its driver may not have been fit to drive; and the lessons derived from the case are relevant to all employers.

The following were identified as features leading up to the accident: 

  • The employee driver had been warned previously by the company about his "erratic" driving after he had four crashes in three years.
  • The company admitted allowing the employee to work more than 70-hours per week in the weeks leading up to the incident.
  • The company allowed the employee to continue working despite warnings about his driving.

The company pleaded guilty to charges under the Health and safety at Work etc. Act 1974 for failing to ensure the safety of its employees and members of the public. 

Following the sentencing, Phil Medlicott, managing director of Midland Red (South) Ltd said that the company "deeply regret the opportunities that were missed to act decisively on emerging warning signs". 

This is at the heart of this case: missed opportunities and warning signs.

Missed Opportunities

The tragic case should act as a strong warning to employers about the importance of ensuring (on an ongoing basis) that its employees are competent.  Employers should  properly investigate any indication that one of its employees might not be fit or able to work safely.

In the wake of a serious or fatal incident, investigators (such as the Health and Safety Executive) can use their powers to compel employers to provide them with information relevant to their investigation.  The following are examples of documents that investigators may demand to see after an incident, to see whether the employer was on notice of issues relating to its employee: 

  • Medical information held about the employee.
  • HR records, including the employees' sickness absence and return to work interviews. 
  • Details of the employee's ongoing training and assessments.
  • Complaints regarding the employees' behaviour. 
  • Information about previous accidents / near misses involving the employee (and any training or assessment following these accidents).

We live in a time when employees are assessing and recording ever more information about their employees.  In the event of a serious incident, investigators could then use this information as the basis for its criminal case against a company for failures relating to health and safety. This information could even be used as evidence to support charges under the Corporate Manslaughter and Corporate Homicide Act 2007 if there have been serious systemic failings at senior management level. 

Employers need to take care to ensure that the information and data that they gather regarding their employees' behaviour is monitored and, where necessary, action is taken to address problem staff.  Companies should ensure that they can have a paper trail that demonstrates that when concerns are raised (whether that be health concerns, previous accidents or customer complaints), these are properly followed up and the company has satisfied itself of the safety of members of the public and its own employees. 

Contact

DWF offers a Crisis Response Service for operators. Sign up to DWF's free Crisis Response Service and have access to specialist H&S lawyers 24 hours a day, 7 days a week, to help you manage a crisis and investigation.

Further Reading

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