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HSE's role in the investigation of work-related road accidents and advice on responding to enquiries on managing work-related road safety

OM 2009/02 Version 2

Summary

This OM:

Version 2 makes a number of changes to the appendix.

It replaces OM 2003/103 version 3 and OM 2003/109 which should now be cancelled.

Background

1. 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.  They 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 is adequately protected by more specific and detailed law enforced by another authority.

2. 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 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 cases of serious management shortcomings.

3. There are a number of terms used to describe the management of risks encountered when driving at work.  HSE refers to work-related road safety (WRRS) but others use the terms work-related road risk (WRRR), occupational road risk (ORR) or management of occupational road risk (MORR).

Enforcement of road traffic legislation

4. Road traffic law is enforced by the Police and others such as the Vehicle and Operator Services Agency (VOSA).  The police will in most cases take the lead in the investigation of road traffic incidents on the public highway. The police will also be responsible for enforcing road traffic legislation in some other public places such as hospital grounds and supermarket car parks (OC 789/4 refers).

5. Inspectors should note that it is open to the police/Crown Prosecution Service/Procurator Fiscal in Scotland to prosecute employers under "cause or permit" provisions of road traffic law. Employers have been found guilty of aiding, abetting, counselling and procuring the commissioning of road traffic offences by employees. The offence usually requires proof of knowledge on the part of the employer that the vehicle, driver or activity was unlawful. Decided cases have cited the following terms when employers have been found guilty of causing or permitting a road traffic offence:

6. Examples of specific road traffic regulation which can constitute an offence by employers include:

Management failures can constitute the underlying causes of these and other road traffic offences.

7. Inspectors should also be aware of Association of Chief Police Officers (ACPO) Road Deaths Investigation Manual (RDIM) (in particular pages 119-121).  This was developed in association with a wide range of interested parties including HSE.  RDIM helps identify the circumstances in which health and safety management failures may have significantly contributed to an accident and where referral should be made to HSE because failures cannot be addressed by 'cause and permit' provisions of road traffic law, see para 5 above.

Enforcement of health and safety law on the public highway

8. The Health and Safety (Enforcing Authority) Regulations 1998 set out the enforcement allocation arrangements for health and safety in Great Britain. The Regulations specify in Schedule 1 the main activities which determine whether local authorities will be the enforcing authorities.  All other activities are reserved to HSE, even if they take place in LA enforced premises.

9. All work activities taking place on the public highway fall to HSE's enforcement, except for mobile vendors (OC 124/9 refers). Local authorities have no health and safety enforcement responsibilities in relation to the public highway. They will, however, have responsibility for road traffic incidents occurring within the curtilage of premises for which they are the enforcing authority, e.g. car parks. LAs also have duties in relation to roads as Highway Authorities.

10. The consequence of these allocation arrangements is that when vehicles and workers leave LA enforced premises and pass onto the public highway HSE becomes the health and safety enforcing authority.

RIDDOR and road traffic incidents

11. The Reporting of Injuries Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) reg.10(2) places restrictions on the general reporting requirements in relation to accidents involving moving vehicles on roads, as defined in the Road Traffic Act 1988, s.192, that is to say a road to which the public has access.  Road trafficincidents arising from the movement of a vehicle on the road are only reportable where either the injured person was engaged in, or a person was injured as a result of:

12  Work-related dangerous occurrences on public highways, relating to exposure to a substance being conveyed by a vehicle, are covered by RIDDOR, and so too are work-related incidents and dangerous occurrences on private roads, (ie those not covered by the Road Traffic Act 1988).

13. The exemption from the reporting requirements of RIDDOR for most types of incident on the road means that HSE will not receive large numbers of RIDDOR notifications of road traffic incidents. However, notifications of both reportable and non-reportable work-related road incidents will be received by HSE from employers, members of the public, local authorities, the police and others.

14. The fact that a road traffic incident was non-reportable under RIDDOR would not prevent its investigation by HSE. When deciding if HSE has a role in relation to particular incidents inspectors should consider the principles and practices set out in this OM.

Initial 'on-road' investigations of work-related road traffic incidents

15. In cases where public and worker safety will not be fully covered by road traffic law and HSE will have to exercise a role, the immediate "on-road" investigation will remain the responsibility of the police. Other than in some cases relating to the carriage of dangerous goods or construction activities, HSE inspectors would not have a role in the initial investigation and would not need an "on the road" presence.

Circumstances where HSE will have a role

16. HSE will take an interest in work-related RTIs in the following situations:

17. On occasions inspectors may receive requests from HM Coroners and the Procurator Fiscal in Scotland to investigate fatal work-related road traffic incidents. In such cases inspectors should cooperate in line with the advice contained in the relevant Enforcement Handbook.

Circumstances where HSE might have a role

18. The police, in line with the guidance referred to in para 7, may ask for assistance from HSE when they are investigating RTIs outside those listed in para 16 above. When approached by the police for help, inspectors should agree to assist where the police have sufficient reason to suspect that safety management failures have been a significant contributory factor in the incident and cannot be addressed by the 'cause and permit' provisions described in paras 5 and 6 above.

19. In addition two broad circumstances will arise outside those detailed in para 16 when it might be appropriate for HSE to take formal enforcement action in relation to work-related RTIs:

20. The Appendix gives examples of circumstances where HSE inspectors might have a role in relation to work-related RTIs. 

Circumstances where HSE will not have a role

21. As a general principle, HSE inspectors will not have a role in relation to:

22. Formal enforcement action by HSE will usually be confined to significant and demonstrable failures to manage the health and safety of work activities on or near the public highway by employers and the self-employed.

23. HSE has a dual role of preventing further harm from occurring and instigating legal proceedings where appropriate. Enforcement action should, in most instances, be confined to the service of notices to mitigate risks caused by underlying health and safety management failures. However, if principal inspectors consider that the circumstances of a particular incident fall within the HSE Enforcement Policy then prosecution may also be appropriate. Care will be needed to check that action required by HSE does not conflict with other law, e.g. Highways Act, planning legislation etc.

24. HSE should not prosecute solely because road traffic offence penalties are disproportionate to the offence committed. In such instances it should be left to the Crown Prosecution Service/Procurator Fiscal in Scotland to decide whether the employer should be prosecuted under health and safety or road traffic law.

Complaints

25. Complaints from workers, members of the public and others will be received from time to time. These will fall into three broad categories relating to:

26. They should be handled as follows:

Investigations in relation to LA-enforced premises

27. HSE inspectors may receive notifications of RTIs involving vehicles and workers from LA enforced premises and complaints about management of these vehicles and workers. HSE will be responsible for dealing with such incidents and complaints as the enforcing authority for work activities on the road, and inspectors will need to liaise closely with LAs. In these investigations inspectors should note that they do not have the vires to enquire about on-site activities, unless they have the relevant flexible warrant.

Communication and liaison arrangements following road traffic incidents

28. It is important to avoid duplication of enforcement effort when dealing with road traffic incidents and inspectors should liaise closely and fully with all those enforcing authorities that may have an interest. In most instances this will be the police and where incidents involve local authority enforced premises, or employees of such premises, the local authority as well. Other regulators may also be involved such as:

The police will be able to advise inspectors of the interest of these bodies. Inspectors should indicate HSE interest and the areas where they might be able to assist or would want to take action.

29. HSE inspectors must ensure that they communicate clearly the action they intend to take (or not take) in relation to a road traffic incident with all relevant enforcing authorities. In most situations inspectors should confirm the action they intend to take in writing.

30. Where HSE might reasonably be expected by others to consider the application of health and safety legislation to a road traffic incident, it is important that they inform injured persons and/or the families of deceased persons of the action they intend to take. This should be done both when HSE is to take enforcement action and when it is decided HSE does not have an enforcement role.

31. The protocol agreed between HSE, the Association of Chief Police Officers (ACPO) and the Crown Prosecution Service (CPS) entitled Work-related deaths - A protocol for liaison (OC 165/10 refers) - sets out the principles for effective liaison between HSE, police forces and the CPS in relation to work-related deaths in England and Wales where HSE is the enforcing authority for health and safety legislation. Inspectors investigating work-related road traffic fatalities should seek to establish liaison mechanisms with the police and CPS in line with the protocol.

32. For all road deaths there will be a designated senior investigating police officer who should be the contact. When dealing with work-related road traffic fatalities inspectors should also ensure investigations are conducted in accordance with HSE's Enforcement Policy Statement.

Advice on responding to enquiries on managing work-related road safety (WRRS)

33. If dutyholders or employees' representatives raise the issue of WRRS at a visit or telephone for advice they should be referred to INDG 382 Driving at Work. This is a joint DfT/HSE publication and contains advice on managing work-related road safety. They may also be referred to the HSE Work-Related Road Safety website which contains further information and /or the Driving for Better Business website.

Additional sources of information

34  The following contain information which Inspectors may find helpful

Reference to the Sector

35. Transportation Sector will be pleased to offer advice on any matters relating to the management of work-related road safety.

Cancellation of instructions

36.   

Appendix - Situations where HSE may have a role following a work-related road traffic incident

(But please note this is not fully inclusive and other sectors may have further examples)

Issue HSE involvement Commentary
Loading and unloading activities

1. General

Likely

Most incidents involving loading and unloading are intended to be reportable under RIDDOR reg.10. Where a work-related road traffic incident results from a significant failure to manage the safety of a vehicle loading or unloading work activity HSE has a role. More generally HSE involvement will be most appropriate where the incident involves routine loading/unloading activity taking place in close proximity to employers' premises. In such situations the employer will have knowledge of the risks involved and a good opportunity to ensure the safety of the activity. HSEs main interest is in the un/loading operation rather than the parking of the vehicle on the road. See also paras 20 and 33 below.

2. Outside LA enforced premises

Likely

Enforcement allocation legislation means that HSE will be the enforcing authority for loading and unloading of work vehicles on the public highway outside LA enforced premises. HSE should liaise with LAs and the Police about possible action in such cases and ensure that any underlying health and safety management failures are adequately resolved.

Driving activities on public roads

3. General

No

HSE inspectors should generally not seek involvement with work-related road traffic incidents arising from driving activities on public roads apart from the particular situations detailed below. The Police (or others such as the local highway authority and the Vehicle and Operator Services Agency) are better placed to deal with incidents that occur on public roads and enforcing road traffic legislation.  The majority of road traffic incidents will not be RIDDOR reportable.

4. "Other public places", eg supermarket car parks, industrial estates, hospital grounds, dock areas, farm roads, etc. (For application to house building see para 44 below)

Possibly

Police have responsibility to enforce road traffic legislation in "other public places". HSE has a clear enforcement role set out in OC 789/4. This role is a function of the fact that "other public places" are generally within the curtilage of premises subject to health and safety legislation. Where premises are local authority enforced it will be for the local authority to take action not HSE.

5. Carriage of dangerous goods

Possibly

Specifically assigned to HSE. See Arrangements for dealing with 'on the road' incidents involving dangerous goods

6. Vehicles manoeuvring near to a work place.

Likely

In these situations employers have a degree of control over the activities, with site layout and vehicle management having a significant influence over road safety immediately outside work premises. CDM will be relevant for construction sites. HSE is therefore likely to have a role in relation to management of risk, for example, manoeuvring of lift trucks outside employer's premises, and vehicles entering and leaving work premises.

Liaison with the Police will be needed, and possibly the highway authority.

7. Reversing activities

No - on public highways. Likely – entering and leaving work place

Reversing is not illegal except on motorways, etc. The Highway Code sets the standards for this activity on public roads. HSE should not prohibit reversing per se.

However, at the entrance/exit to workplaces changes to internal road system/traffic management system might enable reversing to be reduced or eliminated. Employers should demonstrate they have done all that is reasonably practicable to protect workers and members of the public. This may involve deciding if reversing into premises is safer than reversing out of premises. Any banksman needs to be protected from traffic and should be instructed that they have no authority to stop traffic on the public highway.

8. Armed forces vehicles travelling on public highway

Possibly

There are some exemptions from road traffic legislation for armed forces vehicles. However, the Army replicates requirements of road traffic law in Army Regulations. Failure to comply with Regulations is an offence under the Army Act etc - and individual soldiers are subject to disciplinary hearings. Accidents are not reportable under RIDDOR if the driver is on duty at the time. Inspectors should generally resist involvement with such issues and seek advice from the Public Services Sector.

9. Hours of driving

No

Driver hours (including The Road Transport (Working Time) Regulations 2005) .  For further information including addresses of VOSA see SIM 5/2008/04. Inspectors should resist using HSW Act to set driver hours and rest regimes for any at-work drivers as we have no suitable measure for safe hours of driving for non LGV/PSV vehicles.

10. Hours of work

Possibly

Working Time Regulations 1998 as amended may apply, but there are exempted sectors, and difficulties on application. See OCs 1/3 , 1/5 and 1/6.

11. Travel to and from work/commuting

Unlikely

There should generally be no HSE involvement.

12. Agricultural vehicles moving on public highway

Possibly

Road traffic legislation will have primacy as the driver of the agricultural vehicle is required to ensure they travel along the road and enter/exit fields, yards, etc without endangering other road users. HSE may have a role where the vehicle is moving between agricultural premises and are subject to the Agriculture (Tractor Cab) or Agriculture (Avoidance of Accidents to Children) Regulations.

13. Newspaper deliveries by cyclists

Very unlikely

Road traffic legislation and its enforcement will in most cases adequately cover the safety of newspaper delivery staff.

There is a disapplication under the Personal Protective Equipment at Work Regulations 1992 for PPE used while travelling on the road, therefore reflective clothing cannot be required under these Regulations. The requirements for lights and reflectors for bicycles are contained within the Road Vehicles Lighting Regulations which are enforced by the police.  Gov Direct provides advice:  Cycling

Local authorities are responsible for enforcement of health and safety law in newsagent's shops - but not for peripatetic activities.  Many local authorities have released guidance on newspaper delivery.

14. Milk delivery/passenger riding on vehicle

Unlikely

Incidents have occurred where milk delivery staff travelling on the rear of delivery vehicles without proper arrangements have fallen and been injured. The safe carriage of passengers on road vehicles is primarily dealt with by the Road Vehicles (Construction and Use) Regulations and is enforced by the police. OC 549/3 deals with milk delivery.

15. Specialist works vehicles normally confined to site but on highway

Unlikely

Some exemptions may apply under Road Traffic legislation, eg if travelling less than 6 miles per week.

HSE cannot prohibit their use on public roads as road traffic legislation permits their use.

16. Driver training - road vehicles

No

Matter well regulated by road traffic legislation, Driving Standards Agency, etc.

17. Driver training - specialist works vehicles e.g. lift trucks, pallet trucks, etc driven on public highway. (see also 6 above)

No

Drivers and employers (through Cause and Permit of Road Traffic Legislation) are required to comply with all aspects of road traffic legislation, including driver training and licensing when driving on public roads. The competence of drivers to operate equipment in the workplace will be relevant where road traffic incidents involving specialist works vehicles occur just outside the curtilage of premises.

18. Use of mobile phone.

Unlikely

Department for Transport are responsible for policy on the use of mobile phones when driving and the Police enforce.  It is illegal to use a hand-held mobile phone or similar device while driving.  Employers can also be prosecuted if employees are distracted because they require them to use their mobile phones while driving.  The Sector can provide further advice.

Vehicles and objects parked on highway

19. General

No

Danger to other road users caused by positioning of vehicles is a police matter.

20. Parked specialist work vehicles running away

Unlikely

There will be no HSE involvement if the vehicle is parked on the road.  But HSE should be involved if it is parked in the work place.

21. Skips

No

Specifically covered by Highways Act. Refer to local highway authority.

Passenger safety systems

22. Seat belts on buses, coaches, minibuses

No

Seat belt requirements are covered by the Road Traffic Act 1988 and Road Vehicle (Construction and Use) Regulations. See Minibus and coach seatbelts.

Vehicle integrity and maintenance

23. Security of loads

Possibly

Load security is specifically dealt with by Section 40A of the Road Traffic Act and Reg. 100 of the Construction and Use Regs so police are capable of effectively dealing with the issue. HSE inspectors should generally resist taking an enforcement role in relation to this issue.  See HSE guidance for securing of loads in the workplace

24. Vehicle emissions

No

VOSA has powers to deal with vehicle emissions. Complaints should be referred to them or LAs where emissions causing nuisance at particular site.

25. Road worthiness

No

It is an offence under the Road Traffic Act.s.8 to use, or cause or permit the use of, a vehicle that is in a dangerous condition. Incidents involving road worthiness of vehicles are a matter for the police. VOSA also has role in enforcing Road Traffic Act provisions on the road worthiness of vehicles. OC 789/4 sets out present arrangements in relation to road worthiness issues.

26. Vehicle maintenance/servicing

No

Inadequate or defective servicing of vehicles by garages and other vehicle servicers is a consumer issue covered by Trading Standards Officers. In addition there may be scope for Trading Standards officers to prosecute for poor servicing under the Road Traffic Act S.75 (supply of unroadworthy vehicle).  But on-vehicle accessories which form part of the vehicle will require maintenance under the Provision and Use of Work Equipment Regulations 1998 (PUWER) and the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER)

27. Maintenance of vehicles not requiring MOT (ie specialist works vehicles)

No

Standards of road worthiness, causing danger to road users addressed by road traffic legislation.

28. Working at heights on tankers and lorries.

Yes

These risks are not covered by road traffic law. Employers should establish safe systems of work for such activities. See Preventing falls from vehicles and Sheeting and unsheeting

Vehicles involved in on the road work activities

29. Vehicles engaged in construction demolition, alteration, maintenance and repair of roads including placing and removing cones, warning signs etc.

Yes

Incidents where person injured as a result of construction, demolition, alteration, maintenance or repair of the road, services and buildings/structures adjacent to roads. Temporary Traffic Management on High Speed Roads. For other construction activities presumption is for some HSE involvement, if only technical support to others.

30. Gritting

Yes

Incidents RIDDOR reportable providing gritting in progress at the time.  If gritter vehicle just travelling between gritting locations, then no HSE involvement.  Employers should ensure safe systems of work in place. (See also 39 for issues relating to ice on roads)

31. Hedge cutting

Yes

Incidents RIDDOR reportable. Employers should ensure safe systems of work in place.  (See also 39 for issues relating to road debris.)

32. Refuse collection

Yes

Safe systems of work are required to ensure safety of workers engaged in refuse collection. Injuries occurring during the loading of refuse onto refuse collection trucks will be RIDDOR reportable. Waste management and recycling

33. Stationary vehicles involved in work activities on the road e.g. breakdown recovery, gully cleaning, repairs to lampposts.

Likely

Safe systems of work should be devised by the employer to ensure safety of employees and public. In some instances vehicles and/or attachments, e.g. winches, cranes etc will be used as work equipment. Danger to other road users caused by positioning of vehicle is a police matter.

See Roadside recovery and repair: Road traffic incidents (RTIs) and roadside safety

The Manufacturing Sector can also provide information on a range of topics relating to roadside repairs and vehicle recovery.

Work on foot on public highway

34. Professional pedestrians:  postal delivery workers; newspaper boys; meter readers; public survey staff; canvassers;

No

In most cases risks involved are no different to those created by normal use of highway as private user other than length of time exposed. Wearing of high visibility clothing to be encouraged. However, although high visibility clothing may be PPE under health and safety at work legislation there is a disapplication in the Regs for PPE whilst travelling on a road.

35. Work incidental to traffic flow:  road cleaning; hedge cutting; construction workers crossing carriageway; highway inspections placing warning signs

Yes

Normal work activities for which HSE has an enforcement role. Traffic represents an additional risk that safety management arrangements should cover.

36. Work related to traffic flow:  construction traffic control; traffic wardens; police (safety checks, road blocks etc) school crossing patrol.

Possible

The highway authority will agree temporary traffic controls at roadworks. Road traffic legislation will take precedence where the police, traffic wardens, etc are making use of their powers to stop or direct vehicles, and in relation to road users at roadworks. Where safe systems of work are not established or implemented there may be a role for HSE. (When level crossings are involved then Office of Rail Regulation may have a role)

Crossing patrol women/men are provided with the power to stop vehicles under Section 26 of the Road Traffic Act. Road traffic legislation will have primacy in incidents involving crossing patrols. A Home Office circular provides guidance on suitable clothing for crossing patrols. RoSPA have produced guidance on crossing patrols that represents best practice, including training issues. Where incident occurs due to failure to train crossing patrol staff in safe stopping of traffic there may be a role for HSE enforcement.

37. Banksman for vehicle (where banksman provided at work place specifically to control movement of vehicles)

Yes

Activity of banksman clearly within control of employer. Risk to pedestrians and passing traffic needs to be balanced against risk to banksman. Where banksman is used there is a need to ensure they are as safe as reasonably practicable. A banksman has no power to stop traffic.

38. Banksman for individual vehicle

Likely

Activity largely ad hoc and remote from employers/workplace influence.

Highway design, use and maintenance

39. Surface and condition of road including mud on the road and clippings arising from hedge cutting.

No

Covered by Highways Act (HA). One statutory function of highways authorities is to ensure people able to enjoy usage of roads. There is a specific requirement in HA s.161 relating to any deposits on the road and s.41 relating to ice. (The condition of the road surface at level crossings is a matter for the Office of Rail Regulation)

40. Overhanging trees and other obstructions

Possibly

Generally these issues are covered by Highways Act but if the obstruction prevents safe access/egress from the workplace then discussion/action with the dutyholder will be appropriate.

41. Changes to routes and expansion of roads, e.g. use of hard shoulder as carriageway

No

Clear Department for Transport (and agencies) remit. Highways Agency and Police play an important role.

42. Changes to road layout, diversions and road closures

Unlikely

Matters for local highway authorities and Police. Traffic Regulations Orders issued by local highway authority. Designers should consider the safety of those carrying out changes.

43. Speed limits, signage etc (For placing signs see 29 above)

No

Both employees and MOP affected. Statutory function of local highway authority and other government departments/agencies.  TheTraffic Signs Regulations and General Directions 2002 detail signing and site layout requirements. When introducing temporary speed limits in relation to road works the Police and local highway authority must be consulted by the principal contractor.

44. Entrance/exit of workplaces

Possibly

There may be knock on effects to internal road systems. Planning permission will normally be required which will involve LAs. CDM will apply to construction sites.

45. Road partially completed e.g. house building site

Possibly

Depends on when hand over takes place and actual issue involved. Even prior to hand over may still be a "road" under the Road Traffic Act s.192.

46. Re-routing of public rights of way, e.g. footpaths

No

This is a matter for the local highways authority. (Except where level crossings are concerned.)

47. New roads and improvement schemes

Possibly

Routes, capacity and layout are matters for the highway authority but CDM Regs likely to apply.

Updated 2013-11-27