What is ‘grey fleet’?
Simply put it is any vehicle which is not owned, leased or rented by an employer that is used by an employee for business travel*, mostly this applies to private vehicles owned by an employee. This ‘fleet’ of employee‐owned cars is regarded as ‘grey’ as the vehicles in use are in somewhat of a grey area of responsibility for the employer; responsibilities which are often ignored or misunderstood.
The Health and Safety at Work Act requires employers to ensure, so far as is reasonably practicable, the health and safety of all employees while at work. Employers and employees have a responsibility to ensure that others are not put at risk during any work-related driving activities and this includes driving for business purposes whether in a company supplied vehicle or one which is privately owned. In practice the employer has the same legal duty of care for grey fleet drivers as they do for those who drive a company supplied vehicle and failing to address from an organisational perspective this can leave the employer vulnerable to prosecution, civil litigation and reputational damage.
While employers may be effectively managing and monitoring the maintenance and servicing of its company owned vehicles as well as ensuring that they have a valid MOT and that they are adequately insured these controls do not always apply to the grey fleet. It is estimated that as much of 40% of work vehicles are grey fleet, these are vehicles whose age, condition and fitness for purpose are not controlled by the employer. Research carried out by the License Bureau indicated that 14% of grey fleet drivers recognised that their vehicle service was overdue, 10% were aware that their vehicle required mechanical attention and 10% admitted to not actually having business insurance cover for the vehicle they drive.
To manage this often-neglected risk an employer should have effective processes to determine that their grey fleet drivers are:
Legally entitled to drive the vehicle they are using.
While many employers rely only on a physical check of the employee’s driving license which will provide details of the vehicle classes the holder is permitted to drive it gives no indication of any penalty points or disqualifications, therefore a check using the facility on the Gov UK website is recommended. The employee needs to supply a check code to the employer to enable them to carry out this check. In the event of an employee refusing to comply in providing this information then it could be asked what are they trying to hide?
Using a vehicle that is in a safe and roadworthy condition.
At the very minimum this should be a check of the MOT, again this can be done via the Gov UK website.
Using a vehicle that is suitably insured for business use.
The employer should carry out a physical check of the employee’s motor insurance policy. This is a vital element in controlling the grey fleet. In the event of a grey fleet driver having an accident for which they are at fault their insurance would be used to settle any claims arising from it. The risk to the employer is where the driver does not have business use cover and is involved in an accident while driving for work then they could be held responsible for the negligent actions of their employee – ‘vicarious responsibility’.
The above requirements should not be considered by the employer as a one-off exercise, in order to be truly effective annual reviews of these should be carried out. The employer could link the collection of this information as a condition to paying business mileage expenses. These requirements should be made clear to employees as part of the employer’s health and safety policy or as a stand-alone occupational road risk policy (which may also include items such as driver health declarations, drug and alcohol polices, use of mobile phones, etc.).
*An employee driving to a client site to attend a meeting, between different work locations or to collect materials from a supplier are all considered as driving for work as they do not constitute part of the employee’s daily commute.
If you have any questions on any of the issues raised in the above article, please contact Gary Foggo.