28.5.2024 | Haulage

Transport Operators, you have responsibilities too

Ashton’s Legal’s Tim Ridyard delves into the intricacies of operator licensing and the expectations set forth by the Traffic Commissioner.

Transport Managers and their teams are pivotal in safely managing vehicles and drivers. Many will be brilliant, many average, and some fall short. However, what is expected of a transport business’s director, owner, or partner? How should they manage and oversee transport management? What practical steps and actions should they carry out? Do they need training? What is their legal liability?

Whilst what is set out below is universal, Tim Ridyard centres on vehicles subject to operator licensing and the expectations of the regulator, the Traffic Commissioner.

Of course, standard licences must have a nominated Transport Manager. A Restricted licence has no such requirement, but there will have to be a Responsible Person (RP) who has custody of this function. In either licence type, a TM/RP may or may not be a director, owner, or partner. In many businesses, they will be separate.

It is easy for there to be a mindset that the Transport Managers are in overall charge of compliance. After all, they are qualified explicitly with a Transport Manager CPC qualification. But what mechanisms are in place for adequately overseeing and managing them and their teams? What is happening in this upper part of the management pyramid? The answer is that there is often a void, or the oversight is insufficient.

This area regularly appears in DVSA investigations and Traffic Commissioner hearings.

Senior Traffic Commissioner Guidance

So, what is required of operators – what is expected of the controlling minds of the business?

The Senior Traffic Commissioner Statutory Guidance and Statutory Document gives a clear steer as to the expectations:

‘The responsibility for ascertaining what is required and for complying with those requirements lies with the operator….. the Senior Traffic Commissioner has described three simple steps: check compliance with the governing legislation, train drivers regarding that legislation and monitor compliance, retrain and discipline drivers where shortcomings are identified.’

Compliance can be delegated, but responsibility cannot be delegated. In other words, the Transport Manager can be tasked (and on a Standard licence, has the statutory role, alone or with others, for continuous and effective transport management). Still, the directors, etc., cannot offload their own obligations.

It is crucial that an operator’s failure to exercise oversight is a good repute or fitness issue. In some situations, operators may have actual knowledge of breaches but fail to take any or enough action, or they may have no knowledge of non-compliance for whatever reason, raising the issue of whether they are of good repute.

In reality, a significant proportion of cases investigated by DVSA that unearth poor transport management (and lead to Traffic Commissioner intervention) are not the result of deliberate actions – invariably, they stem from knowledge and training issues, an absence of proper procedures and an absence of business owner and senior management oversight of Transport Managers.

The Senior Traffic Commissioner’s guidance set out further principles:

  • Directors have collective responsibility for the company which they manage, and it is, therefore, their responsibility to set the standards which employees are expected to meet and ensure that those standards are met;
  • A person who controls an entity which operates good vehicles or public service vehicles must have sufficient knowledge to exercise proper oversight and
  • Traffic Commissioners are …. entitled to assume that directors are all equally responsible for the company’s management and, therefore, similarly guilty for any non-compliance.

This last point does not mean all directors must be equally involved in transport oversight. It is perfectly permissible for specific directors, such that “one or more director(s) is more responsible for maintenance and road safety than others.”

Meetings

‘An operator must supervise and monitor the actions of a transport manager by, for example, checking the maintenance inspections, the annual test pass rate, the number of prohibitions issued, the DVSA Operator Compliance Risk Score, the arrangements for securing compliance with the drivers’ hours’ rules and tachograph regulations etc.’ (Senior Traffic Commissioner C Statutory Document No 3).

There is an expectation that the “management pyramid” will involve senior management interacting with transport management as part of the oversight process. In some businesses, there may be a disconnect between senior management and transport teams. Whilst a lot of good day-to-day management may well take place in the form of general ‘management by walking about’, and this gives senior management a lot of vital information, there should be a formal meeting process at regular intervals, e.g. fortnightly or monthly meetings, with a set agenda and minuted/documented.

Further, such meetings should have meaningful content. Whilst transport meetings may adequately need to cover fuel usage, accidents, and such, specific items dealing with the elements of operator licensing must be on the agenda. These might include things such as:

  • adherence to inspection intervals (%)
  • inspection sheet data and brake testing
  • annual test history
  • OCRS performance
  • prohibitions or other notable incidents
  • driver defect reporting and audit results
  • drivers’ hours compliance, etc./missing mileage
  • driver issues/disciplinary follow-up
  • maintenance provider performance
  • driver training
  • driver licence checks.

At Public Inquiry hearings, Traffic Commissioners often refer to Key Performance Indicators (KPIs) identified by operators for inclusion in such meetings so that senior management can hone in on important data to show compliance.

Proper minutes of such meetings are an excellent way of positively demonstrating that directors, partners, etc., focus on scrutinizing transport management. By carrying this out correctly, they are checking the transport team and exhibiting the responsible behaviour that Traffic Commissioners expect from those holding an operator’s licence.

Training

It is commonplace for operators never to have undergone operator licence training. Such courses, known as OLAT (Operators Licence Awareness Training), must be attended by one or more directors, partners, sole traders (and other senior management).

In a recent public inquiry by the writer, a traffic commissioner, it was made plain that there was a minimum expectation that at least one director of a limited company should attend OLAT training. So, this area is not regarded as an optional extra. It has become an expectation, as how else will the operator have the requisite knowledge at the senior level to understand the operator’s licence requirements?

Criminal law

Directors, partners, and owners must be adequately engaged in transport management. This is confined to operator licensing and other possible actions, such as criminal proceedings for acts caused by drivers and vehicles (and indeed those that do not involve transport).

Where senior management leaves transport teams unsupervised, the business is exposed to the risk of prosecution, which may involve the prosecution of individuals.

Of course, a significant benefit of limited company status is that if a prosecution is brought by DVSA, HSE, Environment Agency, etc., the legal person is the limited company that is taken to Court in the first instance. However, in many cases, directors are also prosecuted for their individual failures – often for “permitting” offences. They may not have deliberately set out to offend, but negligence has allowed a state of affairs to arise where offences have been allowed to happen.

Partners and sole traders (who, therefore, do not operate within a limited company) do not enjoy any first-line protection from prosecution. They are prosecuted as individuals. Again, they expose themselves to risk if they do not have proper oversight.

As Traffic Commissioners repeatedly say in Public Inquiries, transport systems cannot be left to run themselves. There has to be top-level oversight and proactivity from above.

If you require advice and assistance concerning any investigation carried out by DVSA and advice concerning operator licensing (including Traffic Commissioner Public Inquiry and preliminary hearing matters), please get in touch with Ashton’s using its online enquiry form or by calling 0330 404 7949.

Tim Ridyard, Ashtons Legal