Risky business

DIA Insurance ADI News

This isn’t an article about COVID-19, but the question that it aims to address is raised by some of the public statements issued by the Government and the DVSA in relation to outbreaks of the disease.

On 29 June 2020, Leicester became the first city in the UK to be placed into a local lockdown in response to concerns that the number of cases of COVID-19 was increasing in the area. Just over a month later, on 4 August, the DVSA issued an email to ADIs affected by the lockdown stating that they could “restart car, motorcycle and vocational training straight away if you have carried out the necessary risk assessments and are ready to do so safely”.

I wondered how many ADIs have risk assessments available to present to anyone with reasonable grounds to ask to see them?

Do ADIs really need to have risk assessments in place, don’t they apply to larger organisations?

The simple answer is yes, we need them.

The Management Of Health And Safety At Work regulations of 1999 require businesses to take a structured approach towards protecting staff, customers and the general public from risk of death, injury or illness as a result of their business dealings. The risk assessment document is how you prove that you are carrying out your duty in this regard.

The regulations can be a bit confusing when you read them as they tend to discuss employers and employees a lot. It is fair to say that some self-employed people are exempt from the rules because they can solidly demonstrate that their business activity doesn’t affect the health and safety of anyone else. 

An example of such a business would be an author, writing from home and conducting all his business dealings online. In our line of work of course, the potential for harm to come to our customers or other members of the public is quite obvious.

Whenever you leave the house to do anything at all, you will be protected by risk assessments. I do some local community work and there are risk assessments in place for all public events we host as a condition of the local authority licences that we need to apply for. They will be in place for public transport you may use, pavements you may walk on and shops you might enter.

What can happen to us if we don’t have risk assessments in place?

Failure to have a suitable risk assessment process in place can attract an enforcement notice from the Health And Safety Executive (HSE), but is ultimately a criminal matter that may be pursued in court action brought by either the HSE or local councils.

Where injury or harm occurs to a member of the public (whether they are a client or not) and your business is seen to be the cause of it, individual members of the public may pursue you in a civil prosecution for professional negligence. We have a duty of care to provide safe environments in which to learn to drive and this legal duty of care is only strengthened by the fact that the DVSA licenses ADIs on successful completion of a professional qualification and put in place a professional code of conduct for us to adhere to.

It is for these reasons that public liability insurance is an essential part of being an ADI even though it might not be a legal requirement. 

These insurance policies aim to pay your expenses in the event of a claim being made against you for negligence. The final figure, where the claim goes against you can be huge – basically consisting of your own legal costs, your victim’s legal costs and any additional compensatory or punitive costs awarded by the court.

It’s a good job we all have that protection as DIA members!

Okay, what do risk assessments actually look like and how do I create one?

To complete a satisfactory risk assessment document, the HSE suggests going through a five-stage process, but before starting, it is worth considering a couple of very important points regarding the use of words and their definitions.

Firstly, the word ‘safe’ means that we are ‘protected from and not exposed to risk or danger’. When you reflect on that for a moment, although we tend to use the word a lot as a profession, to describe something as being ‘safe’ is quite a big statement to make. In the legal context, it could potentially be something of a shot in the foot. In contrast, the word ‘risk’ means that there is a danger present to some extent and that danger can be present to a greater or lesser degree.

A ‘hazard’ is any situation that exposes people to the possibility of anything unwelcome or unpleasant happening and this could include psychological or financial damage as well as physical harm or death.

Although we are going to talk about ‘hazards’ with an obvious aim of minimising ‘risk’ as much as we can and doing our best to make things ‘safe’, I suggest some thought goes into the use of language in creating this document. Describing something as being ‘very low risk’ may be better for you than describing it as being ‘safe’.

The 5 step process advised by HSE

1. Identify the hazards

The more thoroughly you go through this step, the more robust your risk assessment document will be. This is about considering a typical day in your business life and making a note of any hazards that present themselves no matter how large or small they seem. HSE suggests that asking other interested parties to have an input here is a good idea as two sets of eyes are better than one.

2. Assess the potential impact

Taking each hazard in turn, consider the impact of it. Who would it affect and what form would that effect take? Would the impact be felt immediately or could it take time to develop?

3. Act to reduce the risk

The HSE is very clear here and states on its website that “if you can eradicate the hazard completely, then you must do so”, but in cases where you can’t totally eliminate the risk, the advice is to put interventions in place in the following order: 

  • Introduce a less risky option
  • Prevent access to the hazard
  • Organise working patterns to prevent or reduce exposure
  • Introduce PPE

If you consider the recent changes to the way driving tests have been carried out in response to the COVID-19 crisis, you can see these steps in action.

  • They’ve taken steps to reduce the length of time examiners are exposed to the risk by changing operating procedures in several ways
  • They’ve stopped examiners handling pens and driving licences touched by the candidates
  • Examiners are cleaning cars before getting into them
  • Face masks are mandatory

When put together, these things all act to reduce the chances of the virus transmitting by a considerable margin. If we also turn up in clean cars, wipe down touch points before getting out of them and isolate ourselves and our clients at the first sign of any symptoms or positive test results within our individual bubbles, then this risk is further reduced… but never quite absent of course!

4. Record your findings

It is helpful to record your findings. If you employ five or more people, you must record them. The table below is a useful template for this.

5. Monitor and improve

Your risk assessment should be reviewed regularly to see if you can change the way you do things. As a minimum, this needs to be every time there is a change in the way you conduct business, introduce a new working procedure or start using new equipment.

As well as looking at this individually, you should also look around you and consider the actions of others in similar situations in an attempt to establish a pattern of best practice. That doesn’t necessarily mean that you simply copy the steps being taken by those around you because it is possible that your ideas might be better than theirs and also possible that their level of personal risk is different to yours (underlying health conditions for example). It does mean that you can use others as inspiration and spend a bit of time weighing up the advantages and disadvantages of their actions to see if there are lessons you can learn.

All of the hazards, impacts and action items that go towards reducing the risk need to be recorded in some way in order to constitute the risk assessment document. The HSE recommends a simple table as the most effective way of doing this.

Date What is the hazard? Who might be harmed and how? What are you currently doing to control the risk? What else can be done to reduce the risk? Who will do it? When will it be done? Is it done?

Our aim in doing all of this is not just to protect ourselves from legal proceedings against us; it is to introduce working practices that raise the bar and ultimately encourage the public to see greater value in employing us to take care of their driver training needs. 

While doing things like risk assessments and making sure your terms and conditions are solid might seem to add little to the end of year bottom line, they are actually very important aspects of running any business. Once you start doing them, it’s enlightening to see just how many customers make odd comments here and there that confirm that they’ve noticed you taking your responsibilities seriously. I firmly believe that higher quality customers are attracted to you as a result

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Source: ADI News

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