Although the tragic events of 22nd December 2014 are well known and became headline news at the time and for some months thereafter, they are worthy of repetition here, if only to underline the gravity of the issue and the challenges faced by employers in respect of drivers’ health.
While many members of the public were doing their last-minute Christmas shopping in central Glasgow, six people died when a bin lorry owned by Glasgow City Council ("GCC") and driven by a Mr Henry Clarke mounted the pavement and collided with them. The accident occurred because Mr Clarke had fainted at the wheel. However, it emerged that this was not the first time that he had fainted while driving and that he had concealed a previous incident, in 2010, when he had been employed as a bus driver by another employer, First Bus.
The Glasgow Fatal Accident Inquiry and the 19 Recommendations
The Glasgow matter was subject to a Fatal Accident Inquiry, which was conducted by Sheriff John Beckett QC. He found that Mr Clarke had "deliberately misled" doctors as to what had happened to him in 2010. The Sheriff also found that Mr Clarke had made inaccurate and untrue declarations in his BUPA Health Declaration form after he had applied successfully for a job as a minibus driver with GCC later in 2010, that he lied on another Health Declaration form when he applied for the position of HGV driver in 2011 and that he deliberately concealed relevant information from DVLA, including in relation to his fainting in 2010, when he submitted an application for the renewal of his group 2 Licence in 2011. All in all, the Sheriff concluded that Mr Clarke had "repeatedly lied in order to gain and retain jobs and licences".
The Sheriff also made 19 recommendations which were aimed at reducing the chance of such an accident happening again. While many of these were aimed directly at GCC/other local authorities and DVLA, the ones of more general interest and applicability to employers of professional drivers included the following:
- Doctors generally, and GP’s in particular, should take steps to ensure that medical notes are made in such a way as to maximise their ability to identify repeated episodes of loss of consciousness or loss of or altered awareness in the case of patients who are or may become drivers;
- When a Doctor is advising an employer as to a driver’s fitness to drive following a medical incident while driving, the employer should provide all available information about the incident to the Doctor and the Doctor should insist on having it prior to giving advice to the employer and the driver;
- When employing a driver, GCC should not allow employment to commence before references have been received;
- GCC should carry out an internal review of its processes with a view to making improvements in the checking of medical and sickness absence information provided by applicants, such as by including focused health questions within reference requests for drivers and obtaining medical reports in relation to health related driving issues from applicants’ GPs.
Having regard to current employment law, what can/should employers do in the recruitment process to avoid another Glasgow?
Section 60 of the Equality Act 2010, which deals with enquiries about disability and health, is a potential obstacle for employers, although not necessarily an insurmountable one.
Section 60 (1) provides as follows:
"A person (A) to whom an application for work is made must not ask about the health of the applicant (B)-
- before offering work to B, or
- where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work."
It follows from the wording of section 60(1) that the time at which questions are asked is critical. On the face of the section itself (and taken in isolation), questions cannot be asked before a job offer is made or a candidate is shortlisted. However, they can be asked at the same time as this.
Indeed, it is common practice for employers to make job offers conditional on matters such as passing relevant health checks, the receipt of satisfactory references, etc. To the extent that any part of these checks is dependent on information provided by the applicant (e.g. in answering a Health Questionnaire), prospective employers should require applicants to sign a Declaration as to the truthfulness of the answers given by them. Such a Declaration should also include an acknowledgement by the applicant that, if they give false answers, the offer may be withdrawn or (if they have taken up employment already) they may be summarily dismissed.
Section 60 (1) is not the end of the matter, however. This is because section 60 as a whole is subject to a number of exceptions. Section 60 (6) (b) is in terms that:
"This section does not apply to a question that A asks in so far as asking the question is necessary for the purpose of establishing whether B will be able to carry out a function which is intrinsic to the work concerned."
Based on section 60 (6) (b), it would be permissible, when hiring a driver, to ask applicants questions about their ability to drive a vehicle, including questions about whether their ability to drive is affected by any disability or other health condition, since the ability to drive must be "intrinsic" to the work of a professional driver.
However, care must be taken when dealing with any information received from applicants in response to questions asked about their health. It is to be remembered that job applicants are protected from disability discrimination, which can arise if they are rejected for work because of their disability ("direct discrimination"), because of something arising in consequence of their disability where the prospective employer cannot justify the applicant’s unfavourable treatment ("discrimination arising from disability") or where the prospective employer fails to make a reasonable adjustment.
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