Road Legal

Employers have a general duty to ensure that employees are provided with such health checks and surveillance as is appropriate, bearing in mind the risks to their health and safety which are identified by the risk assessments that need to be carried out under regulation 6 of the Management of Health and Safety at Work Regulations 1999. The Fleet Safety Association summarises this  duty succinctly on its website.

Application

The level of commitment to health checks required of the employer will depend on those risks which have been identified by the health and safety risk assessment. Effective management of this area, however, will necessarily involve a co-operative partnership between the employer and the employee.

Guidance on the effective identification and management of risk can be found on the Freight Transport Association's website. This is a general guide but includes comments  on medical checks.

Potential risks

The potential risks to health and safety within the transport industry are huge. All stages of the process - loading, transporting, unloading and returning to the depot - inevitably involve the possibility of an accident. Employers must do all that is reasonably practicable to ensure the safety of their employees whilst at work, which in these circumstances includes whilst on the road. The HSE has published some general guidance on this point.

Quite aside from the obvious risk of an accident, some further possible health risks faced by employees of transport operators could include:

• back and/or joint pain from prolonged periods of driving;
• injury or repetitive strain caused by continual loading and unloading.

There is also considerable merit in ensuring that drivers and other vehicle workers are fit to carry out their job in order to ensure the safety of not just the individual, but also other colleagues and road users.

What an employer can do

Currently, there is no legal requirement for professional drivers to undergo regular medical testing. Even so, employers are duty bound to ensure that their drivers have the appropriate licence for the type of vehicle they are driving. As some medical conditions affect the grant of a licence, employers should be alive to the potential for their drivers to develop a medical condition which may affect their licence.

Advice on medical conditions affecting drivers, and driver licensing, can be found on the DVLA website. Where a medical certificate is required for a licence, employers should ensure that their drivers have the appropriate medical certificate.

Whilst it is the individual's responsibility to monitor their own medical health, an employer does have a duty to monitor the health of the employees to the extent that their health could be affected by the job that they do. This is the co-operative partnership referred to above.

Employers may wish to consider offering their employees:

• regular eye tests;
• regular testing for those illnesses which have been identified by the DVLA as precluding the ownership of a driving licence, or makes ownership subject to certain conditions;
• access to physiotherapy.

As mentioned, there is no legal requirement for employers to carry out such regular checks. Nonetheless, the relatively high standard of what is deemed practicable in all the circumstances means that employers should consider very carefully whether regular health checks for their drivers are appropriate.

It would also be good practice to ensure that appropriate channels are in place for employees to discuss any concerns they may have about any health conditions and their potential effect on their employment. It is a sensitive area, not least for drivers because there is a risk they may lose their livelihood, but also for employers. Employers must balance the legal requirements for safety with compliance with legislation against disability discrimination. Employers should always seek specialist legal advice in these circumstances.

Assessment and training

As a general rule, it is advisable for employers to provide their drivers with appropriate training in relation to the medical conditions which legally effect a person's ability to drive, setting out the types of things drivers should be looking for in their own health. Further, as part of their general health and safety training, drivers should be made aware of the risks of fatigue, and other health conditions affecting their ability to drive.

Further, it is suggested that employers maintain regular assessments of their employees' fitness to drive. This would include but not be limited to their physical fitness, and may, if deemed appropriate, include a medical check. The Royal Society for the Prevention of Accidents has published a useful guide for employers for training and assessing drivers. The leaflet covers all aspects of risk assessment and management, and includes sections on the health of drivers.

Further information

If you are a member, the Road Haulage Association contains some useful guidance on its member-only pages.

Vanessa Hughes is a solicitor in the Regulatory and Government Affairs Group of international law firm DLA Piper UK LLP. She specialises in transport regulations.