Risks lurk aplenty in ‘grey’ fleets

An employer can be vicariously liable for a crash caused by an employee whilst driving on business, even if the individual was driving their private vehicle and not a company provided car or van.

In the event of a fatality, therefore, employers could face criminal prosecutions under the Corporate Manslaughter and Corporate Homicide Act, which was introduced earlier this year. Alternatively, one of the other myriad pieces of legislation surrounding work-related driving could be used, including health and safety laws.

Consequently, it makes sense for every employer to take all the safeguards in their power to ensure that their employees are fit to drive and are using roadworthy vehicles when driving on business.

Easy

In terms of vehicles, this should be relatively easy to ensure if they are companyprovided either because they are owned by the organisation or provided through a contract hire arrangement.

However, it is in relation to the recently well-publicised arena of privately-owned vehicles driven on business – the so-called ‘grey’ fleet – where life gets trickier.

The rising costs of driving have led to a record high in the number of uninsured drivers taking to Britain’s roads. The Motor Insurers’ Bureau states that one in every 20 vehicles on the nation’s roads is uninsured.

Not only must employers requiring employees to drive their own vehicles for business purposes ensure they are correctly insured for business use, but the onus is on them to check that all other vehicle and driver-related documentation is correct and legal.

Employers will be best protected if they include relevant clauses in an employee’s contract of employment and introduce and follow a comprehensive vehicle policy.

Employees can be required to produce copies of their driving licence, insurance documentation and MoT certificate (if relevant) on commencing employment and on a regular basis thereafter.

Details of the employee’s vehicle, such as registration, colour, make, model, mileage, dates of last service/MoT etc can also be requested if necessary. This may be required for insurance purposes, for example.

An employer may also wish to complete an online vehicle inquiry with the Driver and Vehicle Licensing Agency to confirm the details provided by the employee are correct and ensure the vehicle is taxed. Employees can be contractually required to co-operate with such requests.

In order to ensure that employees are fit to drive, employers can ask them to sign a declaration to that effect, disclose any medical conditions which could affect their ability to drive, detail any previous motor accidents or offences and require employees to notify them immediately of any changes in their vehicle or driving status.

Employers should retain copies of the employee’s driving and vehicle documents to show that they have acted diligently and responsibly before permitting staff to drive on business.

This is important in defending any claim in the event of a road crash or fatality, although data protection principles will need to be adhered to.

The employer will need to undertake a risk assessment and consider which employees are most at risk - for example high mileage drivers or employees using older vehicles may face closer scrutiny and be required to provide evidence of driving and servicing documents more frequently.

Informed

Simultaneously, employees should be informed of the consequences of failing to comply with their employer’s requirements. Sanctions could include invalidating any claim for mileage expenses and/or disciplinary action being taken if appropriate. The employment contract can also be drafted to contain an express clause prohibiting employees from using private vehicles for business use unless they have complied with the company’s vehicle policy.

Employers should tread carefully before allowing an employee to use their car for business purposes.

Introducing comprehensive procedures will help to protect the company in the event that criminal proceedings are brought but, more importantly, will hopefully reduce the likelihood of any incidents occurring.

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