Do you employ drivers? What can you learn from the tragedy of the Glasgow bin lorry crash?
Since the Glasgow Bin Lorry crash a year ago, in which 6 people died, debate has raged over who is responsible for ensuring drivers are medically fit to drive. Is it up to the individual, the DVLA, doctors, or employers? Changes to the law are in the pipeline but in the meantime, what lessons can employers learn from this tragic incident?
On 22 December 2014, 6 people were killed by Harry Clarke, 58, who blacked out behind the wheel of the bin lorry he was driving. Nine weeks later, the Crown Office decided not to prosecute Mr Clarke under criminal law, despite the fact that he had lied about his history of blackouts. It also decided not to prosecute his employers, Glasgow City Council, or the DVLA, from whom Mr Clarke had concealed his medical history. But since then, many, including the victims’ families, have been calling for someone to take responsibility for this tragic incident. Many more have been asking what individuals, employers and the authorities should do to avoid it happening again.
An inquiry into the case was concluded last month (December 2015). It stated that the current system, which relies on individuals ‘self-reporting’ medical problems to their employers/the DVLA, is flawed. It recommended better communication between the DVLA and the police (when they come into contact with individuals whose fitness to drive is questionable). It also recommended looking into whether doctors should be given greater freedom – or an obligation – to report fitness-to-drive concerns directly to DVLA.
What about employers? The inquiry criticised Glasgow City Council for allowing Mr Clarke to start work 6 weeks before the reference from his previous employer came through. But in the event, that reference (from First Glasgow) didn’t include any information about the driver’s absence record, or his previous fainting episode. Also, it would appear that Glasgow City Council DID ask Mr Clarke to fill in a health questionnaire before taking him on, but Mr Clarke failed to mention his history of fainting.
So what can an employer do, if they ask for the relevant health information, and it is simply not supplied? The answer, at the end of the day, is not an awful lot. BUT employers can do more than Glasgow City Council did to make sure that crucial information comes to light. For a start, they can make their recruitment procedures more thorough.
As many employers are aware, Section 60 of the Equality Act 2010 restricts what questions they can ask job applicants about their health before deciding whether to employ them. But, as HR Consultancy, HR Initiatives Ltd, says:
“Employers are permitted to ask job applicants about their health where the questions are necessary to establish whether the person will be able to carry out a function which is ‘intrinsic’ to the work. For example, applicants could be asked to confirm whether they have any disability or health condition which affects their ability to drive. Section 60 does allow employers to ask health questions where they are at the stage of making a job offer to a particular individual or where that person has been shortlisted for a vacancy. At this stage, employers can make any job offer conditional upon the applicant passing relevant health checks and on the honesty of any information they give during such checks. Whatever information the employer receives about the employee’s health, the employer must deal with that information fairly, and must not unfairly discriminate against a disabled applicant or employee. If information reveals that the applicant may have a disability, the employer will still have a duty to consider, and where appropriate make, reasonable adjustments for the disabled person.”
Of course, an employer’s responsibilities do not end with the recruitment process. The law states that ‘so far as is reasonably practicable’ an employer must ensure others are not put at risk by the work-related (in this case - driving) activities of their employees. ‘So far as is reasonably practicable’ means balancing the level of risk against the measures needed to control the real risk in terms of time, trouble or money. The first step is to carry out an assessment of the risk to others posed by your organisation’s driving activities, and from there, to consider, in consultation with your workers, whether to:
- Institute regular (say yearly) health checks for workers whose activities could pose a particular risk to themselves or others
- Conduct health checks on workers after they have suffered a period of illness
- Ask workers to complete health questionnaires when they start employment, which include a declaration that their answers are honest and complete
Note - sickness absence data you keep and process has to comply with the Data Protection Act 1998 http://www.legislation.gov.uk/ukpga/1998/29/contents. If an absence record contains specific medical information relating to an employee, this is deemed sensitive data, and you will have to satisfy the statutory conditions for processing such data.
In conclusion, the law does not dictate how employers should keep abreast of their employee’s health and fitness to work. And this is a sensitive area - you must keep data protection in mind and deal fairly with any health information you receive. But the responsibility of the employer to protect its workers and others is clear, and it requires a proactive approach on the part of the employer. Any employer who fails to keep abreast of their employees’ fitness to work risks finding itself in the tragic situation Harry Clarke’s employer has found itself in.