Duty of care

[anna_blakemore]

Firstly please do not turn this into a thread moaning about specific clubs or circuits, if you want to do that start your own thread.
After all the recent activity on a few threads with regards to late finishes lack of breaks etc it got me thinking about the duty of care. I work for a large company who have people travelling around the country and the world daily. Not to long ago we had a guy who had some business to do in Scotland, he lived in Bristol so it was a long trek in the morning to cut it short he was up at around 5 to travel to Scotland attended the meeting and then travelled back the same day. On his way back he fell asleep at the wheel and crashed on the motorway. Fortunately he only suffered minor injury and no one else was involved. Obviously as will any company the health and safety bod’s get involved and put a stop to travelling long distances and enforced limits (I believe European law) on hours worked. I also believe the guy in question was able to sue for a sizable amount as the company had failed in there duty of care.
When you consider the times that we are up to get the circuits and the time we get home especially if there is a late finish (19:00 onwards) could the organising clubs be leaving themselves open for this type of action. I personally don’t think they could as we are volunteers, and therefore its our choice. However what about time keepers, Clerks, scrutineers, recovery etc as they are paid (in many cases I know its only expenses) could they be seen as employees and therefore able to take action especially as they are typically there before us to either set up sign on, race control or check the cars. If you consider a typical sign on is around 8:00 and travel time is 1:30 it means you leave your house at around 6-6:30 and wont get back till 20:30-21:00 if it runs till 19:00. That’s a 15 hour day, and we all know we shouldn’t travel when tiered.
I repeat now what I said at the top this thread is not designed to be aimed at specific clubs or venues, but I would be interested to know what any legally minded people out there would make of it.

[The Fat Clerk]

Very interesting.

[RCMADD]

remember.. we are volunteers... not employed.. legalities dont really come into the equation....(although i may be stood corrected).

breaks dont really bother me as long as the finish is not going too much beyond say 7pm..its a long day.. for some too long.. im usually at donington for about 7.30(ish)... and to not be leaving until after 7.30pm thats 12 hours... im lucky i only live in derby so it takes me 15/20 mins to get home.. but still there are others that drive for 1/1.5 hours.

[HairyDJ]

I'm pretty sure that volunteer status has no exemption effect on H&S issues - safety is safety regardless of status. We are responsible for safety as well as entitled to working conditions meeting safety regs.

Your notes have reminded me of other "work paradigm" issues with marshalling - is an IO or Post Chief likely to be considered to be the manager of the marshals on their post?

[chezza]

Originally Posted by The Fat Clerk

Very interesting.

Thats what I thought. Will be interesting to see what the legal eagles have to say.

[Terrible-Tones]

Originally Posted by RCMADD

remember.. we are volunteers... not employed.. legalities dont really come into the equation....(although i may be stood corrected).

Nobody, club, circuit or whatever can rise above the law - so they, as anybody else, including individuals like us are covered by "legalities" and have legal responsibilities.

Basically as far as I can tell (Legal bods will correct this if needed) British Law states that you simply cannot sign away your legal rights. So even if you sign a bit of paper stating that you absolutely absolve someone, or some entity, of it's standard legal duties towards you, that signed bit of paper would not normally stand up in law.

I think that is about right - but I will of course stand corrected by anyone who has more knowledge than my meagre studies in that department.

I am not sure how this affects us regarding long hours etc - as Fat Clerk says - interesting....!!

[Apple]

Would the fact that we are provided with free camping
take the the travelling time out of the equation?


only playing devils advocate



And if we are given a fiver or a breakfast voucher would that
be classed as payment?

[Richard Duvall]

An interesting point raised here and I agree with those who have said that volunteer status makes no difference to organisers responsibilities for health and safety. However, if every H&S dictat was adhered to as rigorously as some "jobsworths" try to in other walks of life, I suspect that motor racing would never happen!

As individuals we also have some responsibility to behave in a manner that would not endanger others when travelling. We cannot simply put all the responisibility on the employer. That means whatever the purpose of our travel, whether it be business, holiday or activities like marshalling, we should organise oureslves so that we do not travel when tired. For me it is not a problem as I tend to do most of my marshalling at a circuit that is only around 45mins from home and it also has to work within an 18:30 curfew, and recently we finished at 17:30. I'm not sure I would want to marshal at a circuit that required me to be on post as late as 19:00.

[beltanedeath]

ah think you'll find the restrictions you are referring to fall under "employment law" which as it states, covers employers and employees and as such has no basis in our volunteering/hobby.

I *think* as an aside, offering us camping including after the last day (ie: sunday), it is then *our* choice if we decide to travel.


sean

[ascarracinguk]

i suppose it comes down to what the blue/black book say about reasonable working hours for marshals without a break...im sure if you read it there is something in there!!!

[Clunk or Zilly]

Could I add in a further dimension ? The dreaded Elf n Safety places a duty on an individual to consider the safety of themselves and others. In the opening section of the thread, it could be argued that the person should have asked to travel the night before and have overnight accommodation provided at company expense. If this was done and the company refused then I think they would definitely be responsible..
A legal eagle may suggest that the decision to travel in both directions as well as a long day marshalling is made by the individual and is not compelled by any organising club etc. This, I would suggest, lays the responsibility back to the individual.

I am no expert and the whole basis of the legislation is that nothing is laid down in plain black & white and each situation is open to different interpretation.

A very interesting and serious question. I feel we will not get a definitive answer as I don't think there is one.....

Gordon

[Hepatic]

Here is a wad of info on driving time rules.

http://www.dft.gov.uk/pgr/roadsafety...graphrules.pdf

and general guidance from the HSE on managing driving of your employees

http://www.hse.gov.uk/pubns/indg382.pdf

Having done many courses for work relating to SHE, and just yesterday undergone a Lloyds Register of Quality Assurance audit on SHE for our entire building, i have a fair amount of "experience" in this type of stuff

We might not be employees but we still owe a duty of care to others not to drive tired, drunk or with any other incapacity. As far as i am aware there is no legislation that covers driving limits of volunteers, but as with anything in SHE common sense should prevail and the limits for employed drivers are a good basis to stick to.

the interesting section of the legislation for employed drivers is that rest breaks can not be part of other duties, they must be complete rest. In my case its about a 2.5 hr drive to Donington (no dig, its just an example i have experienced myself), i could be required to sign on for 8am and maybe racing finishes at 7pm. Say a 30 min "break" in between getting to circuit and cars on track, then everything goes wrong, red flags everywhere and we end up with no lunch break and straight through to 7pm. Thats a long day but our duty of care should be to ensure we don't jump straight in to the car and go home but take at least another 30 mins break.

Most people are so knackered by that time all they want to do is get home and put their feet up. If someone did fall asleep at the wheel and killed another road user as a result, only the individual can be to blame. It's our choice to volunteer, travel, stay over and no circuit or club could be reasonably expected to manage it. Its no different to deciding to drive while feeling ill or having just fainted. Its our responsibility to manage it which is why the longer journeys i take will normally involve a stop over. That and its more sociable and i can have a few drinks with people i've not seen in ages

[Hepatic]

Originally Posted by Clunk or Zilly

In the opening section of the thread, it could be argued that the person should have asked to travel the night before and have overnight accommodation provided at company expense. If this was done and the company refused then I think they would definitely be responsible..

A company is legally bound to ensure the health & safety of their employees. yes the guy should have figured out that was a stupid thing to do but the company should never have asked him - that is where they failed in their duty and why the guy could sue for the injuries. For a distance like that either do the meeting by phone / video conferencing, fly there and back in the same day or as you stated, drive up one day, stop over and drive back the next day. Again its only common sense but it seems to have been sacrificed for the need to do more in less time...

[White flag man]

Interesting Anna,
but, as we are volunteers and therefore choose which meetings to go to, and how far we have to travel to them, I don't really think the circuit can have any liability.

[Mike 'Bean' Broadbent]

Surely, we have to take responsibility for our own actions. To start with, if there are more marshals, we can take breaks during the day so that we are not constantly 'on duty' all day. If there is enough orange, we can stand down for an hour. Also, why not take a snooze in the car at the end of the day before driving home. If you drive refreshed, there is less risk to you, your passengers & other road users. If we start using the HS&E as a weapon, circuits will limit meetings & employ marshals - we could end up with track days at the weekend, rather than having a BARC clubbie or an HSCC meet! Come on!!!

[Dan Friel]

Originally Posted by White flag man

Interesting Anna,
but, as we are volunteers and therefore choose which meetings to go to, and how far we have to travel to them, I don't really think the circuit can have any liability.

Exactly. The "duty of care" lies with the individual. If the meeting would leave you exhausted, don't do it.

[Paul Newns]

Originally Posted by Hepatic

[url] as with anything in SHE common sense should prevail )

Steve, aren't Health and Safety and common sense mutually exclusive? I prefer common sense....if I see a hole I tend not to fall into it, I don't need half a dozen signs to tell me it's dangerous and I shouldn't fall in!

[Justin Moran]

Having read all the above, one thing stands out and its not something our beloved sport is blessed with in great amounts, that is common sense. We, who have been around a bit, are aware of the duty to the self, we undergo training during which we are advised to eat, drink and stay refreshed as often as possible, Idont have a problem with anyone taking a breather during the gaps between the races and even during, if its an endurance event. The track is still there and unless something has been spotted it will get the cursory check by those able to do so thereby relieving others to have a coffee/tea/water and a bite to eat if they so desire.
I have had to sit down before I fell down not that long ago due to a very early start, lots of driving and a long day previously. the guy I was on post with was very understanding and I stated I would be there if anything untoward should happen.
Plain old common sense, I didnt want to become the incident.
We need to exercise a little common sense and take responsibility for our actions.
Sorry 'bout that, I got carried away!

[Dave Brand]

As I see it, travelling time/distance is not the responsibility of the "employer" unless it is part of the "employee's" duty. I chose to live ten miles from my place of work; many of my colleagues lived further away, many nearer, but our terms of employment & working hours didn't take any of that into account.

Let's look at what constitutes a marshalling day. Although we are required to sign on at some ungodly hour, I'd argue that our "working" day doesn't start until we are required on post. Typically, we are on post at 8AM for an 8:30 start, finishing at 6:30 with (in theory) a half-hour lunch break, making a "working" day of ten hours. However, we are not working for the full nine hours. A meeting with a very tight timetable may have 20-minute races/sessions with ten-minute downtime after each one, which means that we have twenty minutes downtime every hour. Even allowing for the fact that not all of that downtime can be considered as a break as we may have recoveries to deal with, & some of the time should be occupied with track checks, etc., I'm sure that the time for breaks available to us during the day is well in excess of the requirements of employment legislation.

Endurance racing is, of course, a different matter; the Blue Book says:

"11.1. Marshals must be relieved after six hours of
continuous racing, following which they should operate
in shifts of maximum four hours, with one shift on and
two off."

[Dave Brand]

Originally Posted by Paul Newns

Steve, aren't Health and Safety and common sense mutually exclusive?

No! Health & Safety legislation is basically common sense. Implementation is another matter. . .

[numbersix]

Is there any case law within the racing world? Even counsel would only give an opinion.

Until someone throws a lawsuit at a club I suppose we'll never have a definitive answer to this question, and I suspect marshals are sensible enough not to do that. We let off steam on 10/10s instead!

[ascarracinguk]

Originally Posted by Dan Friel

Exactly. The "duty of care" lies with the individual. If the meeting would leave you exhausted, don't do it.

ok lets go down that route for a second...2 problems!

1) how many times have you signed up for a meeting and it has had lunch cancelled or its overrun.....your attitude doesnt work..what do you want us to do? walk off post half way though the day?....

2) if clubs continue to forget about duty of care or marshals welfare and take the attitude that a late finish and no lunch is acceptable then there will be no marshals to volenteer for the event



the duty of care lies with the organisers AND the marshals, but you in my experience as with employment the main duty of care should lie with the organisers to run a safe meeting FOR ALL

[Dan Friel]

Originally Posted by ascarracinguk

ok lets go down that route for a second...2 problems!

1) how many times have you signed up for a meeting and it has had lunch cancelled or its overrun.....your attitude doesnt work..what do you want us to do? walk off post half way though the day?....

2) if clubs continue to forget about duty of care or marshals welfare and take the attitude that a late finish and no lunch is acceptable then there will be no marshals to volenteer for the event



the duty of care lies with the organisers AND the marshals, but you in my experience as with employment the main duty of care should lie with the organisers to run a safe meeting FOR ALL

Point 1. Yes, of course you can... and that's exactly what the courts would say. Nothing is forcing you to stay.

Point 2. That's the clubs problem, not the individual marshal. A sense of loyalty shouldn't over ride personal "duty of care".

[Andy77]

Originally Posted by Dan Friel

Exactly. The "duty of care" lies with the individual. If the meeting would leave you exhausted, don't do it.

Exactly this.
As a volunteering firefighter I have been to catastrophies that took longer than say 12 h. If I am supposed to take back my group or have special jobs in between it is my duty of care to say no if I can't do a job for whatever reason and if it is just about being exhausted as every wrong move by me can bring another troup or group into unnecessary danger.

[numbersix]

Originally Posted by ascarracinguk

ok lets go down that route for a second...2 problems!

1) how many times have you signed up for a meeting and it has had lunch cancelled or its overrun.....your attitude doesnt work..what do you want us to do? walk off post half way though the day?....

Why not? You're not chained to it. Ask to stand down for 30 mins - that's taking H&S into your own hands.

Originally Posted by ascarracinguk

2) if clubs continue to forget about duty of care or marshals welfare and take the attitude that a late finish and no lunch is acceptable then there will be no marshals to volenteer for the event

Good. Then they'll start to change things. Nothing personal, but 100% of marshals sounding off on 10/10 will not be a fraction as effective as 50% of marshals voting with their size nines. And I think this is going off topic.