After and accident

ASK THE EXPERTS SAFETY, LAW AND WORKING TIME DIRECTIVE FORUM (INTE
1

Hi all,

Joined this fab looking forum in hope of getting some answers.

I’ve been sacked by my employer (thurs last week) after an accident which I caused, involving nobody else, that they deemed as ‘gross misconduct’. The accident was due to me falling asleep at the wheel for approx 8-10 seconds then waking up just before going straight over the center of a roundabout and hitting barriers on the other side, causing damage to the vehicle and trailer.

Before I continue, I completely accept this is what happened and also that it could have been ALOT worse. I escaped without any injuries at all and I was in blind panic about anyone else being involved, thankfully nobody else was.

The main reason they have found it to be ‘gross misconduct’ is for; ‘Health & Safety’ reasons (falling asleep), ‘Speeding in a Company Vehicle which resulted in an accident’ and ‘Failing to fill out a daily defect sheet’.

Now, I am considering whether it was actually an unfair dismissal. I will explain why.

First, the speeding was 48mph on a 40mph road. The accident was not a result of speeding as they say, it was a result of me being asleep then suddenly waking just before I got to a roundabout which I drove straight over and crashed into the barriers on the other side. The speeding was a result of me being asleep also, as I simply do NOT ever ever deliberately speed in ANY vehicle (and fully believe I’ve lent on the accelerator as I’ve ‘nodded off’). Never have, never will. When I bought this up in the disciplinary, that the speeding and accident were both a result of my sleepiness, rather than a deliberate act of speeding which caused an accident, it was dismissed as any kind of mitigation.

Is this right? As I honestly think ‘sleepiness resulting in speeding and then an accident’ is different to ‘speeding which resulted in an accident’? The accident was not a result of my (accidental) speeding.

Second, I can’t find anything in Health & Safety at Work legislation that covers falling asleep at the wheel of a company vehicle. What, if any, are the rules they are talking about? I was on the 2nd shift of 2 where the drive was a PLANNED 9+1/2 drive, with 2 breaks and 1hour load time, 12+1/2 hour shift total. I knew of the double shift (with 11 hours daily rest in between) 2 days prior, and obviously don’t have a choice in the matter. I had my usual 7+1/2 - 8 hours sleep during the daily rest and genuinely felt fine at the start of the shift and at no point until the very moment I nodded off felt overly sleepy. Therefore, I don’t believe I was neglegent in any way. I took the daily rest. Had the sleep I should have had. My driving hours were all in order. I also complained the day before the 1st long shift that the 2 were together to be told ‘its christmas’ (I worked for a Turkey farming business). Finally, the drive times they give are worked out using an average of all the drivers that do the journey, of which MANY travel at 55 as standard on duel carriageways, and speed on other roads, meaning I nearly always take longer to do journy’s than the other drivers, for which I’m often taken the mick out of in the office as ‘being slow’. As well as that pressure, the journey always involved diversions because of the roads taken and time I took them, as the company knows.

Third, not filling out the defect sheet. That was simply (and stupidly) a bad habit that I know many drivers (that I’ve met) have, of driving until my first break or to the destination before filling it out, which I now regret. I did so because I just don’t think I can test things like brakes/trailer brakes/engine until I’ve driven it. So all I had filled out was the date and start odometer reading. I know this was and is wrong.

There are other drivers there who have had accidents before, just as bad, 2 involved rolling the vehicles. They still work for the company.

For the last 11 days, the police have had my digi card, which they say they need to download before sending it me back and they’re having trouble with their software to do so. So am currently waiting for that before I can apply for any other jobs (or at least, turn up for any interviews without it). How long can they continue to do this for? Indefinitely? The police said “I was involved with a fairly bad accident which will result in prosecution”. What will I be prosecuted for? If speeding, will me being asleep be a mitigating circumstance? If being asleep, will the reasons above for the sleepiness be mitigating circumstances for that?

I know many will look down on my for this view, but I honestly feel like I’ve been punished for having an ACCIDENT (for which everyone and everything is insured) which was caused by a badly planned journey for which I didn’t feel I had any choice in taking. I don’t feel I was neglegent (apart from not filling out the defect sheet at the start of the journey, though DID carry out my vehicle checks properly) as I had enough sleep to not feel tired at the start of the shift and at no point on the journey felt tired enough that I would fall asleep so should pull over. I was not at any point deliberately speeding, but will the police see that? Will the police find I’ve been neglegent? Should I bother keep thinking along the lines of that it was an unfair dismissal?

Any feedback on the matter is much appreciated. I have 3 days left to submit an appeal to the company if I’m going to, I’m not sure how ‘fast’ this forum is. Thanks for reading, and hope some of you can be some help. Cheers.

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No offence fella but you don’t have a leg to stand on,I’m sure you are well aware of what could of happened had another car/coach/bus ect been on the roundabout when you ploughed through it and your company will use this as reason for sacking you.they have a duty of care to the public and that will justify their sacking in the eyes of any employment tribunal so personally I wouldn’t be wasting my time if I were you trying to appeal your sacking.
Fair enough they had you planned in a long day but it was a legal plan even if it took you right up to your driving time.
I’d be more worried about what the police are going to do as they could apply to the DVLA to have your HGV licence revoked due to the cause of your accident.

3

The police can keep your card for as long as they need to ensure they have all the evidence they need.
Theres not much point kicking you as you’ve admitted you’re wrong. You should really stop trying to lie the blame at other peoples door. As far as the police are concerned, you are a professional driver and should have sufficient judgement on if you’re fit to continue driving or not.
The speed other drivers do will be of no interest to the police. The way your work was planned will be of no interest as they were keeping you legal.
As to why other drivers kept their jobs after bad accidents will be down to the companies decision where again, you wouldn’t have a very strong case. You’ve admitted fault - you may not know the full circumstances behind the other crashes.
I disagree that you’re being punished for an accident but take the view that you’re being punished for being negligent. There’s a massive difference.
Your biggest concern now as ckm1981 points out is the possibility of losing your vocational licence.

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PCorrUK:
I had my usual 7+1/2 - 8 hours sleep during the daily rest and genuinely felt fine at the start of the shift and at no point until the very moment I nodded off felt overly sleepy

That is very odd and my immediate thought is - a medical condition of some kind because I have never heard of a driver nodding off unless it was due to lack of sleep

Can GP offer any explanation?

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can I suggest you get some info regarding sleep apnea (scuse spelling) its a lot more common than people think and is easily treated .

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syramax:
can I suggest you get some info regarding sleep apnea (scuse spelling) its a lot more common than people think and is easily treated .

I was under the impression that sufferers of that always felt tired when they woke up?

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ROG:

syramax:
can I suggest you get some info regarding sleep apnea (scuse spelling) its a lot more common than people think and is easily treated .

I was under the impression that sufferers of that always felt tired when they woke up?

they are always less than 100% rog as they do not sleep properly , symptoms include heavy snoring and waking up suddenly because they have stopped breathing . consequently they can nod off very easily, hence it is a reportable illness and in some cases if the sufferer fails to get treatment (progress is checked) dvla can revoke your driving licence.

8

Sorry but you cannot claim falling asleep as a mitigating circumstance for speeding any more than you can claim speeding as a mitigating circumstance for falling asleep at the wheel, saying the accident wasn’t caused by speeding because you was asleep at the time is saying I wasn’t responsible for the offence because it was the result of another worse offence I was committing, though to be honest I don’t know why they would suggest the accident was caused by speeding if you admitted falling asleep at the wheel, they were probably just covering their backsides and bringing up every offence they could prove.

Lets be honest, you was sacked for gross misconduct because you fell asleep at the wheel which resulted in an accident, you was found to be speeding and you failed to complete a daily check sheet, if I’m honest I have to say that in my view you haven’t got a hope in hell of winning an unfair dismissal case on the grounds that is was not gross misconduct.

I would say that the only chance you would have is the fact that other drivers have worse records and have not lost their jobs, but when comparing accidents you have to know the circumstances, not all accidents are equal, and anyway I don’t know how much weight a tribunal would give to that so can’t really comment.

My advice would have to be to learn what you can from the incident and move on.

Good luck :wink:

9

thought that if you fell asleep your speed would decrease being in a relaxed state that your foot would loose some pressure on the accelerator not apply this being the reason drivers that are asleep when crashed have less injury’s than a driver of passenger that’s awake and alert.

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nick2008:
thought that if you fell asleep your speed would decrease being in a relaxed state that your foot would loose some pressure on the accelerator not apply this being the reason drivers that are asleep when crashed have less injury’s than a driver of passenger that’s awake and alert.

Cruise control … IMO one of the daftest things ever to be implemented unless they are changed to the new proposed type where the drivers foot needs to be on the accelerator between full on and full off - foot almost hard down knocks off CC - same as foot almost off knock off CC but anywhere in between keeps CC at set level

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Thank you for you replies everyone.

@ckm1981,
I am definitely well aware of what may have happened, more than aware I’m driving around a 40tonne death trap 5 days a week. That’s why I take my driving seriously, responsibly, slow and lawfully.
The company didn’t seem to care much about their duty of care when planning the routes, with 30mins ‘play time’ on a route with almost permanent closures and diversions (m42, m5, m50, m4 → wales). Then adding more pressure on me by taking the mick, every single time I was in the office for ‘being slow’. So I don’t agree they have sacked me due to genuine care of duty of other people.
I am genuinely worried about what might happen with my licence though.

@m1cks,
That’s fair enough about the police keeping the card. It’s just frustrating that the only reason they still have it almost 2 weeks later is due to their software not working, when they could quite easily have downloaded the card and got the info they need already by returning it to the company or even taking it to the nearest VOSA testing place.
I don’t believe the way the work was planned was legal, is my point. It’s a planned 9+1/2 hour drive, worked out by averaging all drivers times they have done the journey in before. That includes ones who drive at 55mph on duel carriageways, which I do not. It used to take me over 9+1/2 hours even with no problems, usually arriving back with 10mins or so to spare. That’s with no closures/diversions, which there usually is.
I understand and agree about other accidents and drivers though, and certainly do not want to drag anybody else into it. Other than to say about the averages being used on the planning.
You say I’m being punished for being negligent. In what way was I neglegent? I’ve looked up neglegent in the dictionary, and in no way can I see how I was?

@ROG
That was my immediate thought too. Well, after returning home anyway. I had the company doctor and my own GP examine me. The only explanation of sorts given to me, is that my blood pressure is low. Not abnormally low, but at the lowest possible end of ‘normal’. The company doctor suggested this may mean when I’m tired it’s harder for my body to pump blood to my brain which could have caused me to fall asleep suddenly and unexpectedly. However, my GP gave me a funny look when I told her this as if it was a silly thing to say. So not sure about that really. Other than that, I’ve never experienced any kind of problem like this before. I’ve been driving for 14 years.

@syramax
I will have a look into that, thanks.

@ROG (reply to syramax)
Well I don’t know as I’d not heard of it. But I can say I was wide awake for hours after the accident. But I think I can put that down to the severe shock I was in for an hour afterwards. I didn’t goto bed until 11pm that evening, around 13 hours after I would have gone to sleep if I’d returned home normally at the end of the shift. I didn’t feel tired the whole time. (Nor did I feel especially tired before the accident)

@syramax (reply to ROG)
I will definitely look into it and see my GP that’s for sure. While my licence is my livelyhood, and I don’t know what else I’d do (I’m certainly not qualified to do anything else), I completely respect the safety of others and myself as a father to my kids than having a licence/job.

@tachograph
I am aware that by saying (truthfully) that the speeding was caused by me falling asleep is mitigating it by saying I was committing a worse offence. But I believe I have mitigating circumstances for the worse offence, which IF i’m right about, means those mitigating circumstances would be for both offences. That they are saying ‘speeding which resulted in an accident’ and completely refusing to budge on that even after telling them I was basically not in control when speeding, and the not being in control part is what resulted in an accident, is what makes me think what you have said. That they wanted to cover their backsides and/or ensure they can go for ‘gross misconduct’ in order to sack me.
I do agree that the 3 reasons together, instead of seperately may say ‘gross misconduct’ though. I just really think that they’ve split 2 offences into 3. The only thing which I take full responsibility for is not filling out the defect sheet at the start. The other offence of falling asleep caused the other offence of speeding. It was falling asleep that caused the accident. And I don’t feel negligent, because I took the required rest, did not feel especially tired enough that I should stop and was in required lawful driving hours regulations. I accidentally and unwillingly fell asleep and there’s nothing else I could have reasonably done to stop this happening. So that’s where I don’t see how I was neglegent.

@nick2008
I believed this too, and until I was told I was speeding, I believed I wouldn’t be as when I was awake I KNOW I wouldn’t travel over 40mph on a single carriageway so thought I’d have been slowing down from that speed. The printout from the vehicle showed that during the last 10 seconds before the accident, I sped up to 48 mph, then at the last 2 seconds went from 48-28mph, then 2 seconds (the accident happening) 28mph-0mph. I sped up, while I was asleep.

@ROG
I agree about cruise control. There’s a few times in my 14 years that it has almost got me into trouble. But I wasn’t using it at the time in this instance.

Again, thanks for your replies people. I hope nobody thinks I’m just desperately trying to “get away with it”. I don’t feel that’s me. I genuinely don’t feel neglegent as there’s nothing else I could have done to stop falling asleep before I did. And I DO put the extremely pushing it run, 2 in a row, as the reason for that. Every driver at the place, for the 2 years I’ve worked there have said over and over that the run is “an accident waiting to happen” and if at ANY time I’d have thought ‘i feel really tired’ I would have pulled over, it’s as simple as that no ifs or buts, but I didn’t. Maybe subconsciously I did, but kept on going subconsciously, because of the pressure from the office about ‘being slow’ and not wanting to make it, I don’t know.

Have I shined any more light on my feelings, or do you still all think “you fell asleep, unlucky, deal with it”?

Cheers.

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Again you’ve said you don’t think the way the work was planned was legal but you also say its possible to do with 10 minutes to spare while keeping to the speed limits. Your two statements contradict each other. Just because there ‘may’ be a diversion doesn’t hold argument when planning a run.

Wikipedia:
Negligence (Lat. negligentia, from neglegere, to neglect, literally “not to pick up something”) is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.

You were negligent. You failed to excercise the care that a reasonably prudent person would by not being fit to drive. I’m sorry but I don’t believe you suddenly fell asleep with no prior warnings or indications you were drowsy. At the first sign you were tired you should have stopped. To continue to carry on is where the neglegence statement comes into it.

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m1cks:
The police can keep your card for as long as they need to ensure they have all the evidence they need.
Theres not much point kicking you as you’ve admitted you’re wrong. You should really stop trying to lie the blame at other peoples door. As far as the police are concerned, you are a professional driver and should have sufficient judgement on if you’re fit to continue driving or not.
The speed other drivers do will be of no interest to the police. The way your work was planned will be of no interest as they were keeping you legal.
As to why other drivers kept their jobs after bad accidents will be down to the companies decision where again, you wouldn’t have a very strong case. You’ve admitted fault - you may not know the full circumstances behind the other crashes.
I disagree that you’re being punished for an accident but take the view that you’re being punished for being negligent. There’s a massive difference.
Your biggest concern now as ckm1981 points out is the possibility of losing your vocational licence.

Fully agree. You didn’t just nod off without any warning, it just doesn’t happen. You would’ve been feeling drowsy leading up to the event, probably with some micro sleeps happening. You decided to ignore the warning signs and continue driving and now you’ve wrecked a truck and narrowly avoided causing carnage/killing people through nothing more than luck. You fully deserved the firing you’ve got.

We’ve probably all been in the same situation - particularly those of us that do nights - where despite having a good long sleep beforehand you suddenly come over all tired and start nodding a bit (I certainly have) but it’s how you deal with it which makes all the difference. The professional would pull over at the first sign of problems, go for a walk round in some fresh air, ring a colleague/friend for a chinwag, get a coffee/drink, maybe tilt seat back for 30 mins to give his body the boost it needs in order to safely continue and if the office have a problem with it, tough [zb]. The unprofessional blunders on regardless because they haven’t got the balls to stand up to the office wallahs who don’t give a ■■■■ if you kill yourself or anyone else so long as their load gets back for x time and this is what happens.

But more importantly, the professional would look at whether he’s actually cut out to be doing this job/type of work. If this tiredness is happening on semi-regular basis then it’s YOUR responsibility to say hey I’m not cut out for these kind of shifts and seek alternative employment that has a work pattern more in sync with your body clock. The fact that you’re already disliked within the company because of the time it takes you to do your job (rightly or wrongly, it doesn’t matter) should tell you that this incident was very much the push you needed to go and have a long hard think about a change of career or, at the very minimum, a big change in the type of work/shift you do. :bulb:

But in short, you haven’t got a leg to stand on if you try going down legal channels.

14

Low blood pressure - now why did I not think of that because my daughter who is a nurse SUDDENLY fainted with that on shift without virtually any prior warning - little giddy for a second or so before fainting - that was a week or so ago

It was only because there was medical staff immediately on hand that this was found to be the case because afterwards the readings were in the normal range - just

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@m1cks and lefthanddown.

well clearly there’s nothing i can say to prove otherwise. but a liar i am not. at no point before it happened did i feel like it would happen. i didn’t feel tired especially before or after the accident. certainly not any more ‘drowsy’ than after doing a 4+1/2 hour drive at a constant motorway speed than normal anyway. i did and do not feel negligent in that respect. sorry you think (or believe otherwise).

@ROG
that’s very interesting! sorry to hear that happened btw. on friday i’m having a 24 hour blood pressure monitor fitted, so will see what the outcome of that is. at the moment, so normally, my readings are the same, JUST in the normal range. worried about the future even if that’s the explanation though tbh. dunno what i’ll do without driving! 8(

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PCorrUK:
@m1cks and lefthanddown.

well clearly there’s nothing i can say to prove otherwise. but a liar i am not. at no point before it happened did i feel like it would happen. i didn’t feel tired especially before or after the accident. certainly not any more ‘drowsy’ than after doing a 4+1/2 hour drive at a constant motorway speed than normal anyway. i did and do not feel negligent in that respect. sorry you think (or believe otherwise).

Well in that case you have a medical condition that you’re seemingly unaware of and until you find out what it is you should not get back behind the wheel and risk the same thing happening again. The company did the right thing in sacking you for both your own safety and everyone else’s.

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Left hand down!:

PCorrUK:
@m1cks and lefthanddown.

well clearly there’s nothing i can say to prove otherwise. but a liar i am not. at no point before it happened did i feel like it would happen. i didn’t feel tired especially before or after the accident. certainly not any more ‘drowsy’ than after doing a 4+1/2 hour drive at a constant motorway speed than normal anyway. i did and do not feel negligent in that respect. sorry you think (or believe otherwise).

Well in that case you have a medical condition that you’re seemingly unaware of and until you find out what it is you should not get back behind the wheel and risk the same thing happening again. The company did the right thing in sacking you for both your own safety and everyone else’s.

I haven’t and I’m not. I don’t believe they did. There are other roles they could’ve offered me, or at least not sacked me for “gross misconduct”. They believe I “was speeding in a company vehicle which resulted in an accident”, or at least that’s what they sacked me for. Which is why I think it was an unfair dismissal.

Can anybody btw, tell me the actual health and safety at work law that was broken in the whole circumstance? Because I also believe they can’t just bandy ‘health and safety’ around willy nilly without there being a specific law being broken. Companies like to expand ‘health and safety’ laws to their pleasing, which has created the many myths around them which people ridicule (without knowing they’re myths). I’m just wandering if this is one of those cases. Or if there is a specific one which is broken if what the company believes about the accident were true?

18

Having read your account and sorry to say but I don’t think you have a leg to stand on so all you can do is learn from the experience and move on.

To be honest I think there is a degree I’d straw clutching going on with some of your suggestions and ideas and in my opinion you gave nothing to back up any legal action you might be considering. For example.

Negligence: You, by your own admission, fell asleep at the wheel and if you take the legal definition of negligence, which if you bring a case is exactly what would be considered, it is as follows.

A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

You nailed this one because a resonably prudent person is not expected to fall asleep while in control of a vehicle so you have departed from the expected conduct.

If you took action against your employer claiming you were not negligent your employer would have to prove You had a duty to him and you breached that duty by failing to conform to the required standard of conduct. Not difficult for them to prove as you failed by falling asleep. They would also have to prove your negligent conduct caused the company harm, it did as you have cost them money, maybe jeopardised the contract and possibly caused bad publicity all of which affects them.

Doesn’t matter you didn’t feel sleepy before the incident the simple fact is it is your duty to stay in control of the vehicle and as soon as you fell asleep you neglected that duty and are therefore negligent.

Speed: The fact is, by your own admission and the tacho data, you were speeding at the time of the incident and by claiming it was because of falling asleep you are only adding to the negligence claim by the company.

Think about bringing the case for unfair dismissal and having to stand up and say something along the lines of - “But I wouldn’t have been speeding if I hadn’t fallen asleep”.

You’ve just made the company’s case for dismissing you with those words. There was a case in town this week where a drug addict went bat crap crazy and smashed all the windows in Iceland. He was arrested but if he claims he only smashed the windows because he was on drugs they aren’t going to say that’s okay then and forget about the damage.

The Run: although scheduling a run to be close to maximum driving time is not ideal there is nothing illegal about it. The company’s legal requirement is to schedule work so as to comply with the Driver’s Hours Regulations and even though they are cutting it close they have done that. You obviously had extended driving days available and you had plenty of notice.

Defect Sheet: You are required by the company to fill in a Defect Sheet sheet each day and you didn’t do it. Not normally a sacking offence on its own but they’ve thrown that in as the final nail. Wasn’t really needed as the falling asleep thing was enough but you didn’t fill it in so nothing you can use there.

You’ve got to move on and put it behind you and hope that the worst that comes out of this is the sacking. There a chance you could be having a court date and a meeting with the TC. I hope for your sake not but you have to consider it and make plans.

19

PCorrUK:
They believe I “was speeding in a company vehicle which resulted in an accident”, or at least that’s what they sacked me for. Which is why I think it was an unfair dismissal.

But you have said you were speeding (the reason why is irrelevant) therefore it cannot be unfair dismissal as you have admitted yourself that that’s what happened.

PCorrUK:
Can anybody btw, tell me the actual health and safety at work law that was broken in the whole circumstance?

There doesn’t need to be any health and safety law breech to sack you. It only needs to be one clause in your contract that covers gross misconduct - a contract doesn’t need any laws to be broken for you to break it - and they can sack you.

I can’t understand why you are feeling so hard done by.

20

Speeding is, by law, an ‘absolute’ offence. You either were speeding or you weren’t. There are no mitigating factors to this offence I’m afraid.