On 22nd December 2014, six pedestrians were killed and a further fifteen injured when a bin lorry careered through Queen Street and George Square in Glasgow.  As you will no doubt be aware, a Fatal Accident Inquiry is ongoing to determine the cause the incident and, throughout the course of that Inquiry, it has emerged that the driver of the bin lorry had failed to disclose to his employers a history of blackouts whilst driving.  On 22nd December 2004, it appears the driver had blacked out at the wheel of the bin lorry, causing him to lose control of it and for it to collide with pedestrians. 

Earlier this year, the Crown Office provided a statement confirming that no criminal case would be brought against anyone involved in the incident. It has recently affirmed that decision. Some of the victims’ families have, however, called for a private prosecution and it remains to be seen whether that is progressed. 

This tragic incident raises questions regarding an employer’s liability for the acts and omissions of their employee. Typically, the employer will be liable to compensate a victim where one of their employees has committed a wrong in the course of his employment that has caused harm to another. In order for an employer to be liable for the acts and omissions of his employee, there must be a sufficiently close connection between the individual’s employment and the wrong that has been committed. This is a fairly well established area of law and, on that basis, it would appear the driver’s employer – Glasgow City Council – could be said to be potentially liable to the families of the victims, but this unique case will likely throw up additional complications.

It is perfectly clear that the accident occurred whilst the driver was in the course of his employment, but can it be said he was negligent? The bin lorry mounted the pavement and struck pedestrians, but the driver had lost consciousness by that point. It was this loss of consciousness that (understandably) caused him to lose control of the vehicle, thus how can someone act negligently whilst unconscious? That would be unreasonable. Therefore, if a case is to be made against the employers, it would need to be argued that the driver was negligent, not in his driving, but in his failure to disclose his medical history to them.

In terms of the Equality Act 2010, it is unlawful for employers to question an employee on their health prior to offering them a position. However, certain roles will have fundamental requirements attached to them and, if the employer feels that particular medical questions must be asked, they are allowed to probe the potential employee as to any conditions which they may suffer from, assuming such questions are related to any fundamental requirements for the role in question.

Additionally, under the Access to Medical Reports Act 1988, an employer is permitted to access the employee’s medical records from their GP if they can prove that their enquiries are in connection with the employment itself. However, the Act provides that if an employer intends to access the medical records of an employee, the employee must be advised and must give his or her consent before the records can be supplied to the employer. The Act gives the employee the power to withhold consent and, as such, block the employer from viewing the records. It is not possible for an employer to access the medical records of their employee without the employee’s consent.

As such, if, as appears to be the case, the driver was not honest when disclosing his medical history to his employers, can it be said that the employer should be liable for this incident? One strong argument suggests that a history of blackouts is particularly relevant to a job driving a rather large bin lorry and, as such, it would have been prudent of the employer to request access to the medical records to see if the driver had any history of this nature. The driver, of course, would have to have consented to the release of his medical records, but had he done so, the employer would have seen the history of blackouts within the records and, presumably, not offered him the job.

The Council has now suspended the driver pending an internal investigation and it may well be that the failure to disclose his medical history is considered misconduct and subsequently, the driver is dismissed from his employment.

However, that does not help us answer the question as to whether the employer can be vicariously liable for this incident. Proving that the driver was working within the course of employment at the relevant time is straightforward; it is less clear as to whether the driver’s lack of candour over his medical history can be said to be ‘negligent.’ Assuming this hurdle can be overcome, the Council may have a reasonable defence if they can show that they had taken all appropriate steps to ensure that their employee was fit for his duties. The employer cannot access the employee’s medical records without consent and if that consent is withheld, what can an employer reasonably be expected to do? Surely the relationship between employer and employee must be based on trust and, if the employee is being dishonest, can the employer reasonably be expected to carry the can if and when the worst happens?  I suspect we may discover the answer to that in the near future as litigation flows from this tragic incident.