Agency drivers : Are you affording the same duty of care as an existing driver or employee ?
For most transport and logistics companies, agency drivers are a vital cog in the wheel of their business as they provide a flexible solution to cater for their day-to-day needs. However, employing agency drivers does not come without risks if appropriate measures are not put in place.
There have been some recent prosecutions by the Health and Safety Executive (HSE) which highlight the responsibilities and due diligence required by any business employing agency drivers.
Failing to provide appropriate training is often overlooked, particularly if the agency driver is being employed on a short-term basis. However, every business needs to be aware that this failure can lead to a company and /or personal criminal prosecution by the HSE and/or a civil claim for compensation which can severely damage the reputation of a company and its ability to financially continue to operate.
The HSE has confirmed it is working with local authorities to inspect businesses in the transport and logistics industry to ensure they are managing the risk of coronavirus (COVID-19) in the run up to Christmas where they often see an increase in the number of agency and temporary workers employed. The HSE have confirmed they will also check other health and safety matters if required and therefore it is ever more critical that these businesses ensure measures are in place to minimise those risks.1
In May 2017, an agency worker arrived for his first day at work as a multi-drop delivery driver. After a brief induction process, the worker delivered his first drop successfully; however, the address provided for the second drop was incorrect and therefore a delivery of 12 beer kegs was not made. When on his next delivery, the worker used a pallet truck to manoeuvre the beer on the lorry to gain access to the next load on his list. He fell backwards from the raised tail lift onto the road and several kegs of beer fell and struck him. The worker suffered serious injuries including a traumatic brain injury and facial fractures requiring metal plates to be inserted into his skull.2
An investigation by the HSE found the driver had no previous experience in using the type of pallet truck or tail lift involved in the incident. The driver was not given any practical training in the safe use of this machinery, nor was he made aware of safe working practices on how the pallet truck should be used on a tail lift. In addition, the employer, failed in its duty to carry out checks on the injured person’s competence and previous experience. The employer pleaded guilty to breaching Regulation 3(1) of the Health & Safety at Work Act 1974. In 2019, the employer was fined £60,000 and ordered to pay costs of £7,203.14.
If appropriate training had been provided, the life-changing injuries sustained by the agency worker could have been prevented.
Speaking after the hearing, the HSE Inspector said: “Employers who use agency workers or contractors have a responsibility to firstly establish the workers’ competence, considering their level of experience and familiarity with the work and work equipment, and then provide the appropriate level of training to ensure the work is done safely. If appropriate training had been provided, the life-changing injuries sustained by the agency worker could have been prevented.”
Another prosecution reinforces the duties owed by businesses to agency drivers. In November 2016, an agency driver was carrying out a delivery of pallet stone tiles. The delivery required him to use a tail-lift and a manual pallet truck. He spent several minutes struggling to lift and manoeuvre the pallet onto the truck’s tail-lift. When he eventually succeeded in doing so, he lost control of the pallet, which fell onto him, causing him to suffer fatal crush injuries.3
An investigation by the HSE found that the weight of the pallet was recorded as 1,200 kg but the actual weight of the pallet was more than 1,400 kg. The pallet was therefore more than the 1,000 kg weight limit set by the pallet network for tail-lift deliveries. The investigation also found that the driver had worked for the company for two weeks and had not received any training for the safe delivery of pallets using a tail-lift.
The company, that was in liquidation by the time of the Court hearing in February 2020, pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974 and were fined £5,000. After the hearing HSE Inspector said: “This was a tragic and wholly avoidable incident, caused by the failure of the host company to provide training to this agency worker on the safe delivery of pallets from a vehicle with a tail-lift. Transport companies should be aware of the importance of identifying and managing the risks involved with delivering heavy loads and the need to adequately train new staff before undertaking such deliveries.”
The HSE can and regularly prosecute businesses in liquidation and justify it on the basis that there is a public interest in doing so in order to send out a clear message to certain industries concerning the safety duties incumbent upon employers.
It is recommended that transport/logistics companies use the services of driver agencies that are Recruitment and Employment Confederation (REC) members and who follow the code of practice drawn up by the REC Drivers Group in conjunction with the RHA (Road Haulage Association) and FTA (Freight Transport Association)4. This code of practice places obligations on both the driver agency and the firm that's engaging the services provided by the driver agency.
By using a REC Drivers Group member, transport and logistics companies will be assured that the driver agency has, amongst other requirements:
Whilst agencies can provide records to ensure the driver has relevant experience, and the transport/logistics business can send paperwork and documents to the agency in advance (such as job specifications, type of vehicle being driven, unloading and loading duties, etc.) which ensures the agency and the driver is equipped with as much information as possible about the job, there is still a further duty on the transport/logistics company. The company employing an agency driver must provide relevant induction and practical training that they would provide to any other full- time employee, pursuant to Regulation 3(1) of the Health & Safety at Work Act 1974.
For any further information or guidance please get in contact with the team.
