A Wake Up Call for Dozy Employers
A recent prosecution thought to be the first of its kind has opened the eyes of businesses around the UK. The reason for this is that the accident actually occurred outside of the employees normal working hours.
In October 2002 a driver was killed as he drove home from work after completing three consecutive 19 hour shifts. The accident occurred when the 21 year old man feel asleep at the wheel and drifted into the path of an oncoming lorry.
The subsequent investigation found that the company failed to monitor and manage the hours worked at their premises and that it was a regular occurrence that employees worked up to 115 hours a week. The firm, which distributes potatoes, was not accused of pressuring their employees into working these hours, but it was decided that if the employer had looked at payroll information, it would have been apparent that employees were working excessive hours.
The company pleaded guilty and in mitigation stated there were now procedures in place to monitor their employees’ working hours.
They were fined £30,000 under Section 2(1) of the Health and Safety at Work, etc. Act 1974 and ordered to pay £24,000 costs. This seemingly low level fine was only due to the company’s current financial problems, as they were already £2 million in the red and on the verge of insolvency.
Lifestyles
In recent years the ‘24/7’ lifestyle of the people in Britain has resulted in service industries being required to change work patterns in order to meet the needs of an ever more demanding population. Subsequently increased working hours now joins the other sleep disrupters which can cause fatigue, such as young children and snoring partners.
Lack of sleep and disrupted sleep patterns are contributors towards reducing people’s awareness and performance and these reductions in safety critical situations can often cause major problems, as it is more likely a person will make a mistake when tired.
Fatigue has been one of the main factors contributing to some of the major incidents/disasters in the past two decades, which include:
| • | Three Mile Island; |
| • | Chernobyl; |
| • | Union Carbide (Bhopal); |
| • | Exxon Valdez; and |
| • | Selby Rail disaster. |
Also with a fifth of road traffic accidents on motorways and dual carriageways attributable to driver fatigue, it is clear to see that decision making and reaction time is seriously affected by fatigue.
Fatigue
Although there is no scientific definition of fatigue the dictionary definition of this term is “extreme mental or physical tiredness”. Fatigue can result in many people, who become stressed because of work, being unable to sleep properly as they are worrying about their job. They therefore become fatigued, increasing the likelihood of them being unable to carry out their normal duties and function safely.
Shift work is often associated with fatigued workers - 1 in 5 employees work shifts. It is important for employers to manage fatigue correctly as the human body works on a natural 24 hour cycle requiring regular sleep patterns. To manage fatigue successfully the following issues need to be assessed:
| • | job design; |
| • | the workload and working environment; |
| • | the shift system and shift change; |
| • | control of overtime; |
| • | on-call working; |
| • | the frequency of breaks; |
| • | recovery time during periods off duty; and |
| • | the nature and time spent travelling. |
There are medical studies which found that the health of shift workers was at risk if not correctly managed, with many workers suffering musculoskeletal complaints as well as diabetes and heart disease, which could be attributable to their complicated work patterns.
The Management of Health and Safety at Work Regulations 1999 require employees to assess the risks posed to the health and safety of their employees and others who may be affected by their undertakings.
People can often become tired, but where people are required to work consistently long hours and shift work, employers must undertake a fatigue risk assessment.
Factors that must be considered in the assessment should include:
| • | are employees tired? |
| • | can they cope with the workload? |
| do they suffer from sleep disorders (or have they recently become parents)? |
You should also consider the environment in which they are required to work (i.e. its noise, lighting, rest facilities etc.) and whether it will affect the employee’s alertness.
After an assessment has been undertaken it should be established whether changes are needed to either the shift patterns or environment. If required an employer should implement a fatigue management policy, taking into account findings of the risk assessment, and they should implement training for the workforce and procedures for monitoring employees.
Peninsula Comment
Generic advice is very difficult to give on fatigue in the workplace, as there is always the need to consider the industry type, the work process, the work pattern and the individual’s capabilities, all of which can differ significantly.
Successful fatigue management should look at both organisational and personal factors and include both corporate and individual responsibilities. However, it should be remembered that the legal duty remains with the employer even if the employee is willing to work excessive hours. The basic rights and protections that the Working Time Regulations 1998 (as amended) provide for workers are: a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they want to, this is generally referred to as an opt-out).
Employers must take sensible and reasonable steps to reduce the risk of fatigue affecting their employees and this can be achieved by adopting good fatigue management techniques, assessing each individual worker’s exposure to fatigue and by arranging the workplace or task undertaking, to further minimise this risk.
A good starting point is to establish if any particular employees are working excessive hours, thereby identifying those who are at immediate risk, and then to assess the work tasks being carried out, the individual’s capability and the environment etc. affecting these employees, to establish their fatigue levels and the control measures needed to reduce the incidence of fatigue in the workplace.
Fatigue itself should be treated like any other hazard in the workplace and providing it is identified in the first place, the correct application of effective control measures will minimise the risk of fatigue-related accidents posed to the workforce, protecting them adequately and also protecting the employer from the risk of claims or prosecution.