Railways contractors should prepare to be challenged over how they manage workers carrying out dangerous tasks while on long shifts.
That is the message from Ian Prosser, the chief inspector of railways at the Office of Rail and Road (ORR).
The body, which acts as safety regulator for British railways, completed its first prosecution for both a fatigue and road-traffic incident last month. It took nearly seven years to conclude the case, which saw Renown Consultants ordered to pay £750,000 after the deaths of Zac Payne and Michael Morris.
In an interview with Construction News, Prosser says the railway industry – where lengthy shifts, long journeys and working at night are commonplace – should examine its working practices.
“I think we will start to challenge [the industry] and think about some of the shift patterns that are liked in the industry in terms of 12-hour shifts. Are they really the right thing to do? Are we getting good efficiency out of that and good productivity?
“We’ll be laying some more challenges down for the industry to improve because I think in improving fatigue management and shift patterns […] planning will actually lead, not just to a safer railway for both the employees and the passengers, but also a more efficient one. Because some of the things that you see going on as part of this tragic incident were not very good from a planning and an efficiency point of view.”
Welders Payne, 20, and Morris, 48, died when their van came off the A1 near Claypole in Lincolnshire, hit a parked articulated lorry, causing a fire that was accelerated by the welding gas canisters they were transporting. Passers-by tried to come to their aid but could not save them during the incident, which took place around 5.30am on 19 June 2013.
Payne had started work at 4.30am the previous day, was sent to two jobs – one of which was cancelled – driving hundreds of miles across the country. Both workers were employed on zero-hour contracts, which the ORR said meant they had to work even when they were tired.
The Office of Rail and Road is the government-owned health and safety regulator on Britain’s railway network. It also scrutinises the work of Network Rail and Highways England, and how the bodies use public money. On the rail network it also enforces competition law. Most road-traffic accidents on public roads are investigated by police, with workplace incidents on private land or involving loading the responsibility of the Health and Safety Executive.
Taking on the case meant the ORR had to prove it had the legal right to prosecute a case involving deaths on the road. It then had to prove that Renown Consultants was guilty of endangering its employees, members of the public and of failing to carry out proper risk assessments. This involved proving Payne was fatigued and that he was driving the van that crashed. The length of time and legal complexity of the prosecution was reflected in the £300,000 Renown was ordered to pay on top of a fine of £450,000.
Prosser adds: “It is not something we would be shy of doing again if we had a similar case. Of course, what we hope is that this case and the other work we’ve been doing in recent years since this tragic accident has had an impact on the sector that would mean that the likelihood of this happening again is much lower.”
HM inspector of railways Kathryn Gibb, who led the ORR’s work on the case, says proving a death was caused by fatigue is a challenge. Despite medical evidence that tiredness can be as impairing to driving performance as alcohol, there is no breathalyser or toxicology test to prove someone was sleep-deprived while at the wheel.
She says: “You’ve got to look at that person’s day, what they did. That person’s no longer with us, so you can’t just ask them what they did. You’ve got to look at the evidence from their colleagues, their families. It’s a lot to prove that a person has not had the opportunity to sleep that day, but we managed to show that it was highly likely that Zac Payne did not sleep for potentially a 24-hour period. And if he did have sleep in that period, it was short, and it was not restorative, certainly not enough to go out on the railways and have a three-hour journey home.”
That Payne and Morris had been on duty for so long was a risk to their safety while they carried out welding on the railways too and was caused by the company’s failure to properly plan their work, she adds.
Gibb says zero-hour contracts “promote people to take on as much work as they possibly can” and are “not compatible with a good fatigue-management system”.
Last year Network Rail said it would review the use of zero-hour contracts among its supply chain amid concerns over their safety. Prosser says they should not be used by those carrying out “safety-critical” jobs.
Reflecting on the lessons learnt from the incident and holding Renown legally responsible, CN asks if there might be similar prosecutions of other companies in future.
“Obviously, if we find the failings, we won’t shy away from taking the appropriate enforcement action,” Gibb says. “We will, as much as possible, try and educate the industry as much as use the big stick, so we hope that we won’t have to.”
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