Under the Road Traffic Act and Construction and Use Regulations the person who is driving the vehicle should, before commencing a journey, ensure that the vehicle is compliant with these Regulations and is being used within the vehicle's operational capabilities.

The company's responsibilities become an issue when they may have 'caused' or 'permitted' an offence to occur, or have breached their health and safety obligations.

With a high burden of responsibility on the driver there may well be shared responsibility identified between an employee driving and the employer.

An example of such a case is where an employee fell asleep at the wheel with his manager present in the vehicle, it was decided that the company had breached its health and safety obligations by requiring him to work and drive long hours. However, the employee was also deemed culpable for not stopping the vehicle when he knew he was extremely fatigued.

The compensation paid to the employee by his employer was reduced by 33% as it was deemed that this was the element of responsibility that fell upon him to pull over and rest. This demonstrates that fault can be divided between various parties, proportionate to the level of responsibility considered to apply to those held culpable.

From the company's perspective, all 'reasonable' steps must be taken to ensure employees' safety and the safety of other road users. It is, though, appreciated that the company cannot necessarily follow or check on every driver, every hour of every day.

Risk assessments must therefore consider what is reasonable and be seen to identify unacceptable risks. From here, targeted action plans must be implemented and processes and procedures put in place to reduce these high risks. Importantly, these policies and procedures must be seen as active management tools. They cannot just be written policies to which only lip service is paid.

One of the areas causing most concern from a company risk perspective is the 'grey' fleet, where employees use their own vehicles for business use. In the eyes of the law, the ownership status of the vehicle being used is an irrelevance. It is the fact that an employee is driving for business purposes that incurs corporate responsibility.

The consequent risk levels here are substantial. Typically a company will have far less control and fewer policies in place for employees' own vehicles compared to a company supplied vehicle.

When it is considered that privately owned cars are often older and not as well or regularly maintained as company cars, the high risk levels become all too obvious. Identification and management of this risk is therefore imperative for companies under the current legal framework.