Kathryn Gilbertson

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Lorna Carter

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Are you prepared to face the price of failing to comply with your fatigue policy?

Construction / 21 May 2020

A £6m+ turnover construction company must pay out £750,000 in fines and costs for failing to ensure that its workers were sufficiently rested to work and travel safely. We consider the issues below.

Renown Consultants Limited (Renown) has been ordered to pay a fine of £450,000 plus costs of £300,000 following a health and safety-related prosecution brought by the Office of Rail and Road. The sentence was passed virtually by HHJ Godsmark sitting at Nottingham Crown Court on 13 May 2020, following a guilty determination on 19 March 2020.

The sentencing brings to an end a complex case in which Zac Payne, 20, and Michael Morris, 48, died on 19 June 2013 while travelling in a company van back to Doncaster after a night shift in Stevenage in the early hours of the morning on the A1 near Claypole. The vehicle hit an articulated lorry causing a fire which was worsened by the welding gas canisters which they were transporting.

Failure to manage fatigue amongst the workforce

HHJ Godsmark found that:

  • Mr Payne was driving the van at the time of the incident, despite Renown’s own company policy stipulating only over 25s may drive their vehicles, and insurance policy not covering anyone under 21 at the wheel;
  • Renown’s gravest failing was to perform a suitable and sufficient risk assessment on the day before the fatalities, which led to the company failing to comply with its own fatigue management procedures, nor did it comply with the working time limits for safety critical work, such as welding and trackside work, which insist there should be a ‘minimum rest period of 12 hours between booking off from a turn of duty to booking on to the next’;
  • Whilst Renown had health and safety procedures in place in written form, in reality only “lip service” was paid to them, with managers showing a “wilful blindness” towards the risks of driving to and from jobs; and
  • Renown was guilty of failing to discharge its duty under sections 2 and 3 of the Health &Safety at Work etc. Act 1974 and regulation 3 of the Management of Health & Safety at Work Regulations 1999 and was therefore guilty of an offence contrary to section 33 of the Act.

 

Impact of coronavirus on sentencing?

Renown’s counsel said that the impact of the coronavirus crisis has cut Renown’s £6.8m turnover by 27% in the month of April and that, if finances continue to be hit, they could be forced to make redundancies. The judge rejected the argument that this should influence the level of fine the company would pay as firms are finding other ways to work during the crisis.

 

Comment

This case is a poignant reminder to businesses that safety comes first, and fatigue policies should be enforced to ensure your workforce is not too tired. This is particularly pertinent in the current climate where many businesses may be over-stretched with increased demand and potentially a reduced workforce. Fatigue policies are an important element of many businesses risk policies, and are often overlooked. If you need help understanding your obligations in respect of managing fatigue or drafting or reviewing your fatigue policy and/or risk assessments, please do get in touch.

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