Heather Lunney from Backhouse Jones solicitors considers driver recruitment issues, particularly in light of the implications following the Glasgow bin lorry crash.
Most operators will have read about the tragic incident which happened in Glasgow on 14 December 2014, when Glasgow City Council (GCC) employee Henry Campbell Clarke, having blacked out at the wheel, lost control of the bin lorry he was driving causing the deaths of 6 pedestrians and injuring 17 others.
The Findings of the Fatal Accident Inquiry into the Glasgow Bin Lorry Crash, published in early December 2015, serves as an important reminder to all employers to review their recruitment and employment processes, with a particular focus on medical conditions, which will affect both the goods and passenger vehicle industries. (This article does not cover any changes to the law in light of the inquiry.)
Fatal accident inquiry findings and recommendations
The Fatal Accident Inquiry into the crash was published in early December 2015, when Sheriff John Beckett QC placed the majority of the responsibility on Mr Clarke’s decision to hide his history of blackouts. The findings of the report have an impact on all employers, but particularly those employing commercial drivers.
Sheriff Beckett QC found that the crash could have been avoided if Mr Clarke had been honest with his doctors and employers about his medical health. Mr Clarke had a history of dizziness and other health complaints, all of which he failed to disclose to GCC when taking up employment with them.
Mr Clarke’s previous employer, First Glasgow, had been asked to provide a reference for Mr Clarke. However, GCC had permitted Mr Clarke to commence employment without having received the reference. Had First Glasgow, in providing a reference, referred to Mr Clarke’s sickness absence record, this would no doubt have flagged up a cause for concern and led to an investigation.
Sheriff Beckett QC made a total of 19 recommendations. Among those recommendations to the GCC were the following.
“Glasgow City Council, when employing a driver, should not allow employment to commence before references sought have been received”.
“Glasgow City Council should carry out an internal review of its employment processes with a view to ascertaining potential areas for improvement in relation to checking medical and sickness absence information provided by applicants, for example, by having focused health questions with reference requests for drivers and obtaining medical reports in relation to health related driving issues from applicants’ GPs”.
Pre-employment health checks
Since the commencement of the Equality Act 2010, it has been unlawful for an employer to ask a job applicant questions about his or her health, prior to an offer of employment, in an application form for example, other than in certain limited circumstances. One of those exceptions is to establish if the applicant will be able to carry out a function that is intrinsic to the work concerned.
Asking applicant drivers whether they have any medical issues which might affect their ability to maintain their vocational licence would probably satisfy the permitted exception as being intrinsic to the work concerned, although employers should go no further than that at application stage to avoid the risk of disability discrimination claims.
However, once a job offer has been made there is nothing to prevent employers asking health questions in more detail, providing they ensure that any health questions asked are relevant to the job that is being offered.
Importantly, and as outlined in the recommendations above, employers should ensure that they make offers of employment conditional on satisfactory health checks and assessment by the applicant’s GP or Occupational Health, where necessary. If an employer subsequently discovers that an employee has failed to give correct information to health questions, this should lead to disciplinary action, potentially resulting in dismissal.
While employers will not fall foul of the Equality Act 2010 by asking health questions of successful applicants, they should still be mindful of how they use that information to avoid any exposure to disability discrimination claims. Each case is different, and if there is any doubt as to how to approach a certain situation, employers should seek specialist advice.
It is also imperative that employers make offers conditional on receiving satisfactory references and do not commence roles before references sought are received. Taking up detailed references from the drivers’ previous employers may bring to light their history or any previous issues they may have experienced, including medical issues, which highlight the need to undertake further enquiries about a driver’s suitability for the role. For example, enquiring about the number of sickness absences in the past year might flag up the need to conduct further investigations by way of a medical assessment.
In addition, remember that when giving references, these should not give a misleading impression of the employee in question; when writing one, it is important for the previous employer to ensure it is accurate. A failure to disclosure relevant information may lead to claims by the new employer, however, employers still need to be mindful of not falling foul of the Data Protection Act or discrimination laws when giving details which could amount to sensitive personal data, notably information about an employee’s health. Providing information regarding the number of sick days/absences is unlikely to amount to sensitive personal data, however, if asked to provide the reasons for those absences, then providing that information is likely to do so and therefore it is advisable that you proceed with caution and seek the employee’s specific consent to disclose that information to the potential employer.
Health issues during employment
What measures can operators take during employment in relation to health issues?
Once a driver has satisfied any conditional pre-employment checks and has commenced employment, employers should still be alive to potential health issues that may arise throughout his or her employment.
As a minimum and perhaps in line with annual licence checks, employers are advised to request that drivers sign a self-declaration that there have been no changes to their health since the last check which might affect their ability to carry out their role or affect their licence. If anything is flagged up, arrange a medical assessment as necessary. Consider making it a contractual obligation to disclose any such health issue and make it clear that failure to disclose, or providing false or misleading medical information, which might impact on their ability to carry out their role will be a disciplinary offence, leading to dismissal.
Generally, try to promote a culture among drivers of being open and honest about any health concerns or worries they have and who they can approach. It is easy to understand why drivers may avoid seeking medical attention due to the fear of possibly losing their employment, and of course dealing with the potential knock on effects this would have on their vocational licence and livelihood.
Should an employer have reason for concern about a driver’s fitness to drive, for example, noticing tiredness, changes in behaviour, and frequent absences, ensure that any concerns are investigated and arrange medical assessments as and when necessary. If in doubt, employers should seek specialist advice as each case will be different.
While doing the above will not prevent an employee who is intent on deliberately concealing any medical health issues, it will at least help an employer demonstrate that it did all that it reasonably could to determine the driver’s fitness to drive safely. In light of the sheriff’s recommendations outlined above, it is always advisable for the employer to seek a reference from at least the most recent employer when employing commercial drivers.