Fatigue, Driving and Regulations

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fatigue at work

During my mother-in-law’s last few years of failing health, I had the pleasure of meeting one of her home care helpers. I watched her bubbly personality cook, tidy-up and put a smile on a frail old lady – all in her 15-20 minute allowed visit time.

As she dashed for the door, I asked her where she was going next and it transpired she had to make a 6 or 7 mile drive across one of the busiest commuter belts in Surrey and had 20-30 minutes to make her next appointment. She also shared the fact that she only got paid for the time she was caring, and not for the time she was driving…

There is much wrong with that, both in terms of what it says about our social care system and how we treat those who work within it, but I recount this story within the context of the recent industry discussion about managing fatigue in the workplace and driver fatigue in commercial fleets.

Where does our care worker fit? Which piece of legislation protects her?

I don’t know for sure what her employment status is, but I’d assume that she’s self-employed given that she’s paid only for time spent with those she’s caring for and not for travel between appointments. If this is the case then the Working Time Regulations 1998 (WTR) are not going to help protect her as they don’t apply to the self-employed.

HSG256 ‘Managing Shiftwork’ provides excellent guidance on how to mitigate the risk of fatigue caused by shift work as well as highlighting the basic rights and protections afforded by WTR 1998 together with when and where WTR applies.

One example of an excellent piece of advice provided in HSG256 is: “If practical, schedule demanding work for periods when workers are most alert and least likely to be fatigued. Where possible, demanding, dangerous and/or safety-critical work should be avoided during the night and early hours of the morning and towards the end of long shifts.”

On reviewing the overall document, what’s immediately apparent, even beyond its’ inapplicability for our care worker, is the number of scenarios excluded – whether by sector (e.g. sea transport or the emergency services, although young people working in emergency services are covered by the young person provisions) or by employment status (the self-employed), to an individual’s right to opt-out. Many, if not all, of these scenarios are covered by separate directives and, of course, all work is covered by the Health and Safety at Work Act of 1974.

Further, the HSE now states that: “Complying with WTR may not in itself be enough to prevent fatigue and it is not enough to rely solely on these requirements to make sure you meet your obligations regarding health and safety in shift work.”

Managing fatigue within the workplace and especially as pertains to shift work is important. This also covers ‘driving for work reasons’ such as with commercial fleets. Additionally, the HSG256 provides good advice on how to mitigate the risks associated with shift workers commuting by car before and after their shifts.

Around 500 people are killed every year while ‘driving for work reasons’. The DoT attributes 1 in 4 road accidents to someone ‘driving for work reasons’ while RoSPA claim that 40% of sleep-related accidents involve a commercial vehicle. Clearly risk assessments should be carried out and include fatigue, not just for commercial fleets, but also for other workers driving for work reasons.

But, again, what about our care worker? Where does she fit? Is she commuting or driving for work reasons between appointments? Well, as a self-employed person she has responsibilities to herself and others as part of the Health and Safety at Work Act of 1974, but what’s happening in our society that has her not being paid to get from one appointment to the next? Are unscrupulous employers now so focused on the bottom line that they view the regulations as a roadmap for navigating through the loopholes rather than as a moral duty of care for all those who deliver services on their behalf?

We now have 1 in 7 UK workers classed as self-employed and 1 in 4 UK workers with a side hustle. The gig economy is seen as an entrepreneurial positive, while zero-hours contracts are viewed as a return to the workhouse. Both may be true but what’s for sure is the pace of change of working conditions is outstripping the ability of the health and safety industry to regulate and legislate.

Those employers who do take the short term view that regulations are there to be navigated for the benefit of their own bottom line will lose out in the longer term because they’re missing the important role their workers play in providing the oil in their business process engine. The engine won’t work without the oil and looking out for the health and safety of all workers (regardless of employment status) will ultimately pay dividends.

For our care worker, let’s hope her energy and dedication are alive and well…

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