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Issue 23

02 | CONTENTSISSUE 2306 | Franchising – a new landscapeJames Backhouse, Director, looks at the key areas for consideration for theimplementation of bus franchising since the implementation of the Bus ServicesAct 2017.14 | Snap 18 | The aftermath of 28 | Operator’sawake a serious accident Question TimeMark Davies explores the technological Andrew Woolfall examines the Scott Bell, provides a practical andadvances to keep your drivers awake potentially life-changing consequences pragmatic solution to some of ourwhilst at the wheel. for the parties involved in serious readers important regulatory issues. accidents and what to expect from a legal perspective.backhousejones.co.uk

PA R T N E R S Keep up-to-date | 03 with latest BHJ news @bhjsolicitors @backhousejones Backhouse Jones 48 | Ground breaking legal action for truck cartel case30 | behind the mechanics Read the latest regarding the application lodged in July 2018 signalling the startLaura Hadzik reflects on the revised and updated edition of the DVSA’s “Guide to of the claim against European truckMaintaining Roadworthiness”. Are you up to date? manufacturers found to be colluding in the 14-year price fixing cartel.36 | Who’s in the 40 | Flexible Working 60 | Employees: are yours motivated?John Heaton, Solicitor, discusses some In an age where many of us ‘wantof the issues surrounding clandestine it all’, are those businesses which Brett Cooper considers the impactentrants and the current guidance in offer flexible working arrangements of keeping employees motivatedrespect of the same. delivering? Laura Smith investigates. particularly in light of the current shortage of HGV drivers. How do businesses seek to ensure they attract and hold onto good quality employees? T: 01254 828 300

04 |Wading ashoreAged 18, I aspired to be the next lines to the German 10th and 14th erect the 3rd-largest building on Earth:Alan Whicker. A quintessentially armies, liberate Rome and then in the 300,000 sq. m (source: FT 26.6.18).English globetrotter jet-setting afternoon go to the cinema.off to meet glamorous people. That’s equal to 42 football pitches andQuite why I chose to study law at Alan Whicker understood that logistics might need the logistical brilliance andManchester Polytechnic cannot is of critical importance to any grit of the brave men who, like Alanreally be justified against this successful endeavour whether it be Whicker, took soggy first steps onambitious aspiration. war or managing the economy. Supply Pachino beach and then slogged up to lines must be respected whether part the Alps.But my admiration for all things Whicker of a broader Mediterranean militarygrew when I realised that at the age I campaign that culminated in Venice This got me thinking about difficultwas modestly litigating at Birkenhead for our Alan or endeavouring to ensure problems and the reality is sometimesCounty Court, my hero was embedded 350 daily lorry load of car parts are the better you become at solving themwith a frontline unit facing bitter warfare delivered from across Europe “just in the less you get paid. Once upon aas he waded ashore onto Sicily at the time” to the Honda factory in Swindon. time a locksmith realised the betterheel of Mussolini’s Italy. He stayed with Honda currently receives 2m he became at replacing locks, the lessMontgomery’s desert army and was components per day thanks to free he got paid. In the early days he mightlocked in a series of unique battles in movement of goods. If we end up with wrestle for hours with a jammed lockWorld War II. After crossing the Straits a “no deal Brexit”, to store the minimum but because his inexperience made hisof Messina, the order was to outflank nine days’ worth of components job look difficult his customers wouldMonte Casino and cut the supply required on site, they would need to pay without demur, often adding a tip.backhousejones.co.uk

| 05Eventually, he became highly expert gobbledygook. Moronic work being Ian Jonesand could fix the same problem in indistinguishable from productive T: 01254 828 300minutes. Now his customers resented work. E: [email protected] his call out fee and never tippedat all. If this is how you feel about your T: 01254 828 300 lawyer, why not consider subscribingThe locksmith had not grasped the role to or RHA legal servicesplayed by justifying gobbledygook in where “busyness” is not to bethe modern economy. For every hour of confused with “solving the problem”.economically productive work ten must Our lawyers get to the heart of thebe spent in useless activity to maintain problem by imparting useful expertisethe illusion that what you are doing is straight away, because you are entitledmore difficult and labour intensive than to all the time in the world for a fixedit really is. The thing about commercial monthly fee starting at just £10 pertransport is people only pay you to do vehicle.things which are actually useful. Youdon’t find operators randomly running By the way, your current lawyers whotrucks or buses where they are not probably don’t offer this service willneeded. Some lawyers on the other probably hate me for pointing out thishand, historically have had a bit of a phenomenon.reputation for generating their own

06 |Franchising -a new landscapeJames Backhouse, Director, looksat the key areas for consideration forthe implementation of bus franchisingsince the implementation of the BusServices Act 2017.backhousejones.co.uk

| 07The recent introduction of TheBus Services Act 2017 has openedthe door for Mayoral CombinedAuthorities outside London to beginimplementing bus franchisingoperations in their area.The legislation also provides aprocedure for Non-CombinedMayoral Authorities to implementfranchised bus services, howeverthis process is more onerous andrequires the completion of moresteps. T: 01254 828 300

08 | These procedures are introduced • a non-metropolitan district council This creates significant ‘buyer’ controlby amending The Transport Act 2000. for an area for which there is no in the franchising authority, but with itChanges such as these follow the county council; comes significant financial risk.perceived success of a historically It can also be difficult, once franchisingwell-funded franchising framework • an Integrated Transport Authority is implemented, to return to ain London. for an integrated transport area in de-regulated model. Such concerns England; or are one of the reasons that onlyWhat is a Franchised Bus Service? mayoral combined authorities have • a combined authority which is not a automatic access to such schemes,Where there is a franchising scheme mayoral combined authority. and why other entities must adhere toin place, the recognised franchising a longer process.authority, the local government That being said, where any authority,transport authority, will determine other than a mayoral combined Mayoral Combined Authoritiesthe details of all the services to be authority, seeks to become a – How to Set Up a Franchisingprovided, and control when and where franchising authority; they may only do Schemethose services run. Effectively the so if the Secretary of State permits it.scheme creates a monopoly on the One needs to look at the Transport Actlocal bus network and gives that As set out above, where a franchised 2000, in order to find the proceduremonopoly to the local transport bus scheme has been approved and that must be followed in order toauthority who become known implemented, no other services can implement a franchised bus servicesas the franchising authority. The operate in the franchised area without scheme into a local area.franchising authority will then arrange the prior agreement of the franchisinga competitive tendering process authority. This, of course, only applying toto select which operators actually Mayoral Combined Authorities (MCA).operate the particular services for adefined time period. No one else ispermitted to operate in competitionwith the franchisee.The authority also has responsibility forensuring and maintaining the standardof the services being provided. Thereare a number of potential models, but,for example, the operator may receivethe remuneration from the transportauthority agreed in the tender forproviding the services and all the ticketrevenue is retained by the franchisingauthority. This would often include acashless ticket payment system aswell, oyster and contactless paymentin London for example.According to Section 123A(4) of TheTransport Act 2000, a ‘franchisingauthority’ can be any of the followingentities or organisations:• a mayoral combined authority;• a county council in England for an area for which there are district councils;• a county council in England for an area for which there is no district council;backhousejones.co.uk

| 09Any alternative entity will have to follow see the benefit of the alternative bus The review by the auditor mustthe longer process outlined later. operation frameworks for their locality. state whether, in their opinion, the information relied upon in composingThe five key stages of establishing a There are, naturally, a number of other the assessment was of sufficientfranchised bus scheme, if you are a things that the assessment must quality, the analysis of the informationMCA, as outlined by The Transport Act display before the Government will is of a sufficient quality and that2000, is as follows: be comfortable permitting them to the authority had due regard to any establish a franchising scheme. The guidance issued.1. Prepare an Assessment of the proposed franchising authority must Proposed Scheme outline how they would operate the 2. Consultation and Engagement scheme and how they would fund andThe requirement to put together such budget the infrastructure. Following the first step, the proposedan assessment lies in the provision franchising authority must publishcontained in section 123B of the 2000 In putting together this report, the a consultation document relating toAct. According to subsection (2) of franchising authority may request the proposed franchising scheme. Inthat provision, the assessment must information from incumbent or accordance with section 123F of thepredict the effects of the proposed existing operators that they consider 2000 Act, this consultation documentscheme and the impact it will have may further the analysis. Following must contain the following:on the local area, and; compare that this, they must also commission anproposed scheme with one or more auditor to review the final assessment, • a description of the area in which thealternative course of action. pursuant to section 123D of the 2000 proposed scheme relates; Act.The purpose of such a requirement is • a description of any areas that lieto ensure that the users of the services within the initially identified area; T: 01254 828 300

10 |• a description of the local services the consultation, and their decision appropriate to consult. There is also to be provided; on whether to proceed with the the concept of registered local service franchising agreement. requirements enabling franchising• the date on which the scheme is Notice of the response to the authorities to record and keep track of proposed to be made; consultation must be given to the who falls into the relevant area. Traffic Commissioner. Again, the• the date(s) on which the franchising authority or authorities must show 5. Implementation authority intends to enter into local consideration as to how small-medium service contracts; sized providers of local services will Having implemented the franchising be incorporated into the franchising scheme, the relevant locality could see• the period or periods it is proposed scheme. a number of potential benefits. will expire between the making of local service contracts and the Also included in this step is the These include integrated multi- provision of local services under actual making and publication of the modal ticketing under one brand those contracts; franchising scheme, as required by and one simple oyster-style ticketing section 123H of the 2000 Act. The idea system. There is also likely to be the• a description of the proposed here is to ensure that there is actually a ability to cap and regulate fares, to scheme; scheme at the ready to be implemented ensure that commuters and users are that improves local services and its encouraged to use the bus service.• a statement explaining how the users from the alternative de-regulated Obviously, these capped fares have to authorities will incorporate small- schemes. Clearly this analysis can be work economically, and this will be a medium sized operators into the contentious! challenge. provision of local services; and 4. Transition Environmental policy can be furthered• the date by which the response to given that the franchising authority the consultation must be received. Where the authority decides to proceed will be able to impose standards and with the franchising agreement, the regulations regarding the emissionsAs part of the consultation, the market will have to transition into this of vehicles, with the intention ofproposed authorities must consult all more regulated framework. In order to improving local air quality.persons operating local services in do so there are a number of measuresthe relevant area, as well as all other outlined in the 2000 Act that will These controls however obviouslypersons holding a PSV operator’s facilitate this. have to be paid for and the schemelicence or a community bus permit. has to provide affordable transport. Under section 123I of that legislation,3. Response to the Consultation incumbent local services may be Alternative Entity – How to Set Up postponed until full implementation a Franchising SchemeOnce the above-mentioned can occur. However, before makingconsultation has been published, such a decision they must consult With regards to franchising authoritiesthe proposed franchising authority persons operating local services who which are not Mayoral Combinedmust publish a report explaining the would be affected by the decision, as Authorities, they will eventually haveauthority’s (authorities’) response to well as other persons who it would be to go through the above five-stepbackhousejones.co.uk

| 11process, however there is an added would be very easy and appealing is no security after the five-yearstep for them. Such organisations to model a fleet of new, franchising term, the operators have to write offmust first enter into discussions with authority liveried and eco-friendly the acquisition costs of the capitalthe Government, in order to show vehicles, then model the perceived expenditure in the fleet within thatthat they would be a competent and growth in revenue these might attract! time or there has to be a guaranteedresponsible franchising authority. sale price for the amount not written Of necessity this is educated off over the term (and therefore paidConsequential to such discussions, guesswork and, if wrong, the revenue for in the franchise contract) for theRegulations will be put in place to could fail significantly leaving a black bespoke fleet to whoever takes overensure that the approaching authority hole in the authority’s budget. On the the contract at the end of the term.be properly monitored and regulated. other hand, a lack of ambition in anyOnce these Regulations are imposed, proposed scheme is equally politically Similarly, the TUPE and redundancythen the Secretary of State must give unattractive. For franchising to work costs and the costs of any outstandingconsent for the proposed franchising politically the bus users and wider lease on premises that the losingauthority to act as such, before they public will need to see the benefits, operator has no use for, once they loseenter the first of the five-steps to i.e. vehicles, route network and ticket the contract.franchised bus services. price and integration.Prior to giving consent, the Secretary “As with the advantages the risksof State may request or insist on can be mitigated with the model ofamendments and additions to the franchise adopted. No doubt enormousRegulations. Only once consent has amounts of energy by economistsbeen received can an entity such will be put into this in the process ofas this enter into the process of assessing the viability of franchising.”establishing franchised bus services. Also, the provision of the vehicles, The franchising authority has to makeThe risks of franchising garage facilities and staff are grey special provision for the small medium areas. The operating companies only operators. It is difficult to see how thisMuch is written about the perceived have a fixed term contract with no works over time. A medium privately-benefits of franchising, but it is security for their business thereafter. owned bus company providingimportant to recognise that there are If that term is five years they may be services in a particular town whichsome significant potential negative asked to bid for the contract including loses a tender for those services willoutcomes. The model adopted may the provision by the operator of most likely fail financially at that pointmitigate some of these, but they need the specified fleet. Because there and close down. They simply will notconsidering.The franchising authority is requiredto fund the franchise contract. Clearlythe authority will factor this into theirmodel of ticket revenue, however it T: 01254 828 300

12 |“The potential for imposition offranchising in any locality presentssignificant threats to those businesses,particularly the small/medium sizedoperators.” be there at the next tender round in a significant difference to the potential the obvious risk is that tenderingfive years. outcomes. becomes a price only issue. Rather like many subsidised local rural and schoolEven if the owners decide to bid the There are currently numerous private services now, the provision becomesnext time this will be a new start and, businesses who provide these non- underfunded, sporadic, unattractiveof necessity, be a very risk averse bid. London local bus services from large to the user and provided by operators PLCs to small family businesses. The who bid low and use poorer, cheaperAs with the advantages the risks can potential for imposition of franchising in vehicles.be mitigated with the model of any locality presents significant threatsfranchise adopted. No doubt enormous to those businesses, particularly the It should be recognised thatamounts of energy by economists small/medium sized operators. franchising is only one of the toolswill be put into this in the process of already available to local transportassessing the viability of franchising. The franchising authority needs authorities to influence bus provision. to recognise that it is taking, from Quality partnerships (formal andIn the end though, as has been seen the outset, the substantial financial informal) are another model wherewith a number of rail franchises these risks associated with the model it agreed partnership with localmodels and the variables that feed adopts, particularly in capital costs operators can achieve many of theinto them are not reliable predictors and ongoing running costs. If the perceived advantages of franchisingof outcomes – with franchising the franchising authority does this and but without the financial risk to localfinancial risks of failure for these rests properly commits to funding the authorities and without the risk of losswith the local authority. bus service network that it believes of livelihood to the small or medium will service the local area over the operators that comes with franchising.The danger is also political. A loud long term, even where revenue ismayoral fanfare heralds a fabulous weak at least in the early years, then This model also allows local authoritiesnew bus network, five years down the the benefits referred to above are to step away from the partnershipline a failing fleet of new technology available. if they fall on austere times againeco-buses and the increasing costs and cannot fund their side of theof operating them means reducing This is likely to be a long-term project partnership.service with older failing vehicles. This with the wider economic benefits of thewill reflect straight back to the mayoral integrated, modern, eco, franchised James Backhouseresponsibility for starting down the local bus operation being measured T: 01254 828 300franchising route. and acknowledged, rather than relying E: [email protected] on tendering to provide the ticket salesConclusion to guarantee these costs are covered from the outset.Franchising outside London is a majorshift in the model for bus service If the authority insists that, from theprovision. London was recognised start, the costs must be mitigated byas being significantly better public the tender process and that the ticketfunded per passenger journey than the revenue must overall exceed this cost,non-London services and this makes without looking in the long term, thenbackhousejones.co.uk

in trainingTraining programmesdelivered exclusivelyby Backhouse JonesWhether it be a refresher course foryour transport manager, engineeringteams or senior directors - we deliver it.For more information:T: 01254 828 300E: [email protected]

14 | Snap awakebackhousejones.co.uk

| 15Mark Davies explores the technological advances to keep your drivers awake whilst at the wheel.Fatigue or drowsiness at the wheel and a gyroscope to monitor There is also a kinetic aspect tois often cited as a contributing factor attentiveness and head movements. the SafeCap. The developers of thefor a number of HGV or PCV fatal technology conducted a great dealaccidents and, sadly, diagnosis of the The ‘SafeCap’ comes in honour of of research into head movementscause is often only identified once Ford celebrating 60 years of truck associated with tiredness andan accident has taken place and production in Brazil and looks to save compared such movements with thethe individual prosecuted. However lives by preventing drivers of Heavy movements of driving e.g. checkingproducts are now being developed Goods Vehicles (HGVs) from falling one’s mirrors. By fitting an urbanand marketed which claim to detect asleep or into a state of inattentiveness. software of all the movements, thedrowsiness. It comes at a time when falling asleep SafeCap can distinguish between the at the wheel is real concern for truck two forms of head movement andWhilst many of you may identify with drivers. identify when the wearer is drifting off.the feeling of extreme exhaustion, Having recognised that the wearerpossibly due to the birth of a new When you or I fall asleep at our desks, is falling asleep, the hat will begin tobaby or re-occurring insomnia due to we merely receive a chiding from our vibrate, flash and make noises to bringnocturnal toddlers, ‘Sleep Apnoea’ is in employer. This is not the case for truck the truck driver back around.fact a medical condition characterised drivers. A sleepy truck driver runs theby pauses in breathing or instances of risk of causing injury, or worse, to both Ford are obviously exceptionally proudvery low breathing during sleep. Each himself or other road users. Thus, the of this piece of technology. Presidentpause, caused by an apnoea, can last SafeCap is born. of Ford South America, Lyle Watters,from at least ten seconds to minutes, described it as ‘another example ofand may occur five to thirty times or So, how exactly does the headgear our commitment to utilizing technologymore a hour. wake up its users? If the technology both in our vehicles and also in broader within the hat recognises the driver is driving culture to make life easierDiagnosis of sleep apnoea is often dozing or falling asleep, a combination and safer for our customers.’ Suchidentified by others who witness of sound, light and vibration is used to comments suggest that this is not thethe effects of fatigue on the body. jolt the driver awake. only technological step that Ford willSymptoms may be present for years be taking in the transport sector.without formal diagnosis, during Hopefully, after this wake-up call, thewhich time the sufferer may become driver will recognise that they are too This piece of technology is generatingconditioned to daytime sleepiness tired to be behind the wheel and pull a substantial amount of positiveand fatigue associated with significant over to a halt. feedback. However, it will not belevels of sleep disturbance. Effects of available widely until additional, moresleep apnoea include daytime fatigue, There are five stages of sleep, making thorough testing has been carried out.a slower reaction time and vision up the electroencephalogram,problems. each giving off a different variant of Cough Syncope brainwave. Each brainwave representsRevolutionary approach a different speed of oscillating Whilst this revolutionary approach to electrical voltages within the brain, monitoring drowsiness marks a majorA joint endeavour between Ford and almost like a signature. Stage One move in the heavy goods and passengera Sao Paulo-based creative agency, emits Theta brainwaves – running at carrying industry, cough syncope alsoGTB, has taken a large leap forward four to seven cycles per second – the remains another significant contributorin brainwave monitoring technology. presence of such brainwaves informs towards accidents, and again, largelyThey have developed headwear of the the SafeCap that the wearer is drifting remains undiagnosed.classic ‘trucker hat’ fashion fitted with into the first stage of sleep.an array of sensors, an accelerometer T: 01254 828 300

16 |‘another example of our commitmentto utilizing technology both in ourvehicles and also in broader drivingculture to make life easier and saferfor our customers.’Syncope – the medical term for Mark Davies, one of the regulatoryfainting – is defined as a transient lawyers at Backhouse Jonesloss of consciousness. This can occur comments that all too often, fatalfollowing a series of coughs or even accidents driving either an HGV orafter a single cough. Syncope can be PCV occur when the driver is sufferingbrief, sometimes only lasting for a few from undiagnosed sleep apnoea orseconds and recovery is quick. cough syncope. Cases have and will continue to be successfully defendedUnderstandably, cough syncope has on the basis of the two medicalimportant implications regarding conditions but the process in doingfitness to drive and it is worth visiting so can be very distressing for thethe DVLA guidelines on the subject. individuals concerned. It is thereforeFor group 2 entitlements (LGV/PCV) of paramount importance that allguidelines suggest that if a single operators, either owner managersepisode occurs, driving must cease or Transport Managers, continuefor twelve months. If multiple attacks to develop a sense of awarenesstake place, driving must cease for five regarding the health and well being ofyears. Applicants can re-apply at an their drivers.earlier time but must be in a position tosatisfy other conditions. If you are a Transport Manager and hear through the grapevine that oneThere is no hiding from the fact that, of your drivers is often seen having ain law, falling asleep at the wheel nap in the canteen, or, hearing jokesof an HGV – or bus – is considered that “Billy could sleep on the edge of aa serious criminal offence. Further razor”, you need to address the issue,to this, the evidence in such cases either by having an informal chat oroften excludes any other sensible carrying out further investigations.explanation except that the driver has It may make the difference betweeneither fallen asleep at the wheel or has life and death. And as for the newbecome that inattentive that he, or “Safecap” product, watch this space.she, has failed to see the approaching Drowsiness at the wheel could soonhazard. Where a driver is found to be a thing of the past.have lost consciousness due to fallingasleep, that driver will find themselves Mark Daviesfacing a charge of careless driving as T: 01254 828 300a starting point. That being said, the E: [email protected] of each case may differ,and this charge could well escalate tocausing death by dangerous driving,an offence that carries with it a jailsentence of fourteen years.backhousejones.co.uk

| 17 Are you fit to drive?NEWS BRIEF The ability for an individual to Within the DVLA, the drivers’ medical manoeuvre a vehicle depends section ensures that when there is entirely on their skills interacting a medical condition present, every with both that vehicle and the aspect of driver licencing is outside world. All senses come investigated to identify any effect on into play when driving, in particular the driver driving safely. “Assessing through visual and auditory queues. fitness to drive: a guide for medical professionals” is the publication which Short and long-term memory come summarises the national medical into play when driving through guidelines on fitness to drive. subcategorization into conscious and unconscious memory. Conscious It is intended to assist doctors and memory refers to learnt information other healthcare professionals in and autobiographical details, whereas advising their patients. Any healthcare unconscious memory relates to in specialist can use this document particular, motor skills – notably used to direct patients on notification of in driving. medical conditions and licencing outcomes. It can be found at The most important aspects to safe www.gov.uk/government/publications/ driving involve behaviour, strategic assessing-fitness-to-drive-a-guide- and tactical abilities, personality and for-medical-professionals . the ability to adapt when faced with an illness or disability. The Honorary Medical Advisory Panels encompass 6 different boards From this overview of some of the of expert knowledge on the following many components that enable us to areas: cardiology, neurology, diabetes, drive safely, many illnesses or injuries vision, alcohol or substance misuse could have severe consequences and and dependence and psychiatry. The 6 therefore drivers need to be mindful of panels meet twice a year to review the these and act when necessary. standards and update when necessary as well as advising the Secretary of State and the DVLA. T: 01254 828 300

18 |backhousejones.co.uk

| 19The aftermath of a serious accident Andrew Woolfall examines the potentiallylife-changing consequences for the partiesinvolved in serious accidents and what to expect from a legal perspective.Any serious road traffic incident, template for conducting their enquiries In fact, it may not just be the police whowhether it has fatal or non-fatal and ascertaining what really happened. are involved in looking into matters;consequences, is profoundly life The manual was first published in 2001 they may also recruit the help of otherchanging not only for the victims by the Association of Chief Police agencies such as the DVSA, the HSE orbut also for the other drivers of the Officers (ACPO) and has been updated even bodies such as the Environmentvehicles involved, whether they numerous times since. It specifies how Agency or Trading Standards. Allare in some way blameworthy or the police should approach everything these agencies will still be workingguiltless. that they do. Whether there is a death to the same basic principles, treating or something such as life changing both fatal and non-fatal incidents withThe moment the incident occurs a injuries, the manual tells them that the same level of seriousness.process begins which will see the they must treat any incident as eitherdriver’s actions come under close an actual or potential unlawful killing Only when it becomes abundantlyscrutiny as well as forensic examination (at least until the contrary is proven clear that no blame can be attachedof the vehicles involved. This may substantially). to drivers or other bystanders willultimately lead to a prosecution or things be “scaled down”. Whilst thiseven where there is no blame, an In the minutes and hours which might seem somewhat draconian, itinquest and many months or possibly immediately follow a collision, a driver, should be remembered that the Policeeven years of sleepless nights. operator and other members of staff investigate many more fatal road traffic will often be kept in the dark whilst the accidents each year than conventionalWhenever a serious collision takes police go about their work. homicides – it is no coincidence thatplace, the police turn to their ‘Road the ‘Road Death Investigation Manual’Death Investigation Manual’ as the is very similar to the approach of the murder/manslaughter process. T: 01254 828 300

20 | When a serious incident occurs, the Once the initial response is underway, “Whenever therefirst people on the scene will usually be the investigation stage will begin. The is a road trafficthe ambulance service and the police. police team (leaving aside anybody incident, it isThus begins the “initial response” that might be brought in from the often a questionphase. The first officers attending DVSA or HSE) will include a collision of fate as to thea collision will immediately conduct investigator, vehicle examiner, and consequencesan assessment and send a situation investigating officers to name but a that follow.”report back to their control room. This few. The vehicle examiner will usuallyreport will lead to the co-ordination try and perform an initial review of the If the driver has managed to adviseand deployment of supervisors and vehicles at the scene of the accident, the operator by this time, the employeradditional resources as required. before they are moved. This will often should try and organise a solicitor forThereafter, the police will be concerned be supplemented by a more detailed the driver. It may be that just telephonewith making the scene safe to prevent examination in the following days once advice can be given but at least thefurther incidents and to preserve life. the vehicles have been recovered. driver can be comforted and know what is expected and advised againstWhilst preserving life is the priority, The investigating officers will conduct making his or her position worse.removing victims and providing first what is known as a “first accountaid may disturb the scene and destroy interview” with any driver who might be, It is rare that a driver is arrested atevidence. The police may therefore in some way, considered responsible the scene and then taken to a policestart taking photographs or videoing for the incident. This is often done at station. This only usually happens ifthe location straight away. the scene in a police car. The idea is to there are real concerns that the driver get any suspect’s initial account whilst may never be subsequently tracedThe police will look to preserve the it is fresh in their memory. However, again, the police are mindful for thescene as far as possible. This will it is often this interview which can driver’s or someone else’s continuedinclude securing key evidence and subsequently cause problems for the safety or the individual is wanted inidentifying witnesses as well as driver if there is a later prosecution. connection with other enquiries.isolating any suspects and/or vehicles.This invariably means that any driver The driver is often giving an account After the scene of the incident haswho is thought to be responsible in whilst undergoing many mixed re-opened and everyone sent homesome way will often be removed from emotions from shock, disbelief, guilt or to hospital, the investigation thentheir own vehicle and immediately and fear. The reality of the situation continues in earnest. There willplaced into a police car or van. That is usually sinking in and the driver invariably be follow up interviews withdriver may receive very little information may be in denial or want to be overly any drivers involved. These will takeabout what is going on around them co-operative, to his own detriment. place in the days or weeks after theand may be prevented from talking to accident, once the police are satisfiedother persons, whether witnesses at Wherever possible, the driver should that there has been enough time forthe scene or indeed people back at get access to legal advice before the initial shock to settle down.the operating company. Every driver giving this first interview. Whilst thiswho is involved in a collision will be might appear impractical in the back of Where the police accept that a driverbreathalysed. the police car, the police will normally is not responsible but nevertheless allow the driver to speak to a solicitor. there has been a fatality, the police will still want to interview in order to take“Where fatal incidents have occurred a statement which can be used at anyand there is a prosecution and subsequent inquest. Here the policeconviction, fines tend to run in the are not looking to prosecute the drivertens and hundreds of thousands but simply use his/her evidence as aof pounds.” way of explaining, to the Coroner, what has happened in order that the Coronerbackhousejones.co.uk

| 21can make a formal determination as serious accidents – these are usually Once the investigation has beento the cause of death. Whilst at this the most detailed and thorough of concluded a decision will be madepoint the driver is not a suspect, many investigations. as to what further action should beoperators rightly take the view that the taken. For the driver, this could includedriver should still be represented given The writer has dealt with many being prosecuted for careless orthe potential serious consequences situations where this has happened dangerous driving (or causing deaththat might follow. including: by such driving) which could lead to a conviction and a custodial penalty asIf the police come to the conclusion • accidents which have been caused well as disqualification from driving. Ifthat someone is to blame for the by defective brakes leading to there is a conviction, the driver is alsoserious accident, whether it is the prosecutions being brought against likely to be called before the Trafficdriver and his individual actions or operators and their engineers, Commissioner for a driver conductperhaps something to do with the hearing.vehicle or its load, the driver will be • accidents caused by driver fatiguesubject to further interviews, under which has seen prosecutions If an operator has found to be atcaution, usually at the Police Station. against company directors as a fault there may well be a prosecutionThis will be the part of the process of result of the pressure of work and against that business along with athe police obtaining evidence to be falsification of tachographs and public inquiry. The public inquiry couldused against the driver in connection lead to the revocation of the operator’swith a prosecution. It goes without • prosecutions against transport licence. Where fatal incidents havesaying that the driver should consult managers who have sanctioned the occurred and there is a prosecutionlegal advice before attending any use of vehicles that they know are in and conviction, fines tend to run in theof these interviews. It may be in the an unsafe condition. tens and hundreds of thousands ofdrivers best interest to be fully co- pounds. If a company survives a publicoperative but then again, it may be It is in exactly this situation that proper inquiry, it may still not survive having tobest to rely upon the right of silence record keeping, by operators, becomes pay a large fine plus costs.and say nothing! vital. Defect reports and PMI sheets properly and accurately completed Furthermore, there will be civil claimsIf the police feel that there have may just be the difference between an for compensation and the insurancebeen other external factors such as operator and its staff being exonerated companies will look very closely intomechanical shortcomings or that the or facing jail. Accurate tachograph the circumstances behind the incident.driver was tired due to the pressure charts and work registers may avoid If there has been fault on the part ofof work, it is likely that the operator serious criminal sanctions or fines. the operator (as opposed to the driver),will also be visited. This may see a Operators who have been tempted to many insurance companies will look tofull fleet inspection take place by the “bend the law” are invariably found out “void” the insurance policy and try andDVSA/police or tachographs and in this situation. reclaim any compensation that has todriver’s hours’ records being seized be paid from the operator.for further forensic analysis. It isnot uncommon for prosecutions to T: 01254 828 300come against operators arising out of

22 | O-Licence compliance reviews With the potential consequences Put yourarising from a serious accident being into itso severe, it is not surprising that thewhole process can take a very long O-Licence compliancetime to complete. reviews. A bespoke, independent ‘snap-shot’It may take the police nine or 12 months to identify the level ofto make a decision as to whether a compliance being achieveddriver should be prosecuted and if so, by the teams in yourwhat charges he or she should face. If business.the driver decides to plead “not guilty”and contests the matter at court, it For more information:might a further year before the criminal T: 01254 828 300process is concluded. Civil claims for E: [email protected] can last for many years.Having seized any vehicle involvedin the incident, the police may notrelease it for many weeks until theinvestigation has been completed.If there is to be a prosecution it maybe further retained as evidence. Thismeans that an operator can be withouta vehicle for many weeks, months oreven years.Whenever there is a road trafficincident, it is often a question of fateas to the consequences that follow. Itmay be a ‘near miss’ where no collisiontakes place or it may be a serious orfatal matter where one or more livesare lost. The difference may be downto fractions of a second or millimetresof distance – however it will invariablybe out of the driver’s or operator’scontrol.The consequences can then last fora very long time, often with survivorshaving to live with the outcome for therest of their lives. Yet again it showsthe benefit of having compliance anddocuments to support compliance.Serious issues will not simply go away.Andrew WoolfallT: 01254 828 300E: [email protected]



24 |NEWS BRIEFbackhousejones.co.uk

| 25Deliveries thatwill be with you ina blink of an eye!In the wake of many empty high Being near the M56 and M6, it aidsstreet shop fronts, the Office for the company in their rapid deliveryNational Statistics has recently service.announced that a staggering £1 inevery £5 spent by UK customers is Once, Anne has clicked ‘buy it now’done so online. Most of this money the system works out the locationis being spent on Amazon – the of the customer, which warehouselargest online retailer in the world. has the item in stock and the fastest course between them.In 2017, Amazon paid £4.5 million intax for UK sales of £1.9 billion and had At the warehouse, items are locatedan operating profit of £79 million. This randomly in specific storage units withincredibly low figure has prompted cubby holes known as ‘pods’. A robotChancellor Philip Hammond to collects the pod containing the orderconsider an ‘Amazon tax’ to increase by using a hydraulic lift to bring it tofairness between them and the high ‘picker’ staff. These robots cost morestreet retailers who are currently losing than £10,000 each and outnumberout. staff by 800. They move like pieces on a chess board.Why are customers preferring toshop on-line? Convenience, speed The order is then removed from theand possibly price are the main pod and scanned by the picker andreasons many consumers would cite. placed in a tote to be packaged.Take Amazon for example. It givescustomers the ability to shop online A picker will pick items at roughly 3 perand receive orders not only within 24 minute whilst wearing safety gloves tohours of purchase but within the same avoid injury from sharp objects.day. Amazon charges £79 for theAmazon Prime service which entitles The tote containing the order reachescustomers to unlimited one day and the packaging area via a conveyor beltsame day delivery for free. “How is where it is removed and the barcode isthis even possible?” I hear you say! scanned. The screen at the packagingWell, Harry Wallop from The Daily Mail station communicates the correcttracked the entire process of the same cardboard box or envelope that isday delivery placed by Anne Doughty required.in West Yorkshire and we have tried togive you a little flavour of how it’s done. The label with a second barcode is printed, attached to the parcel andMAN1 is one in 17 of Amazon’s scanned before being placed on awarehouses in the UK and is located second conveyor belt. Further on,in Manchester, sixty-five miles away a label with the name and addressfrom Anne’s home. This warehouse of the customer is attached andcost Amazon £919,370 in their scanned before heading downbusiness rates bill in 2017 and offered a chute into one of 90 differentover 1,000 jobs to people in the local large cardboard boxes known as acommunity, as pointed out by the ‘gaylord’, named after their creatorGeneral Manager. the Gaylord Container Corporation. T: 01254 828 300

26 | Each gaylord is intended to reach adifferent delivery station in the UK.The parcel leaves MAN1 in the gaylordvia an HGV. Anne’s delivery arrives atthe delivery station (DLS2) in Leeds,one of 38 in the UK, where the gaylordis removed from the lorry.At this station the parcels are sortedinto delivery districts for the drivers.Same day deliveries are put into ayellow cage to signify that they arebeing delivered that evening. From2012 Amazon began their same-dayand Sunday services and thereforeno longer used firms such as Yodel orHermes for sorting and delivery buttook on the action themselves.Delivery drivers from various couriersincluding Flex (a bit like Uber), a newcompany allowing anyone with theirown car to sign up via smartphone andearn from £12 to £15 per hour, arriveoutside the station to pick up eveningdeliveries.These drivers scan a quick responsecode in the warehouse and are givenroughly 25-30 parcels in a cage.Amazon calculates the routes,designed to take 9 hours, for thedifferent couriers once they havelogged in on their Amazon app.Amazon gives bonuses to thecompanies which are passed onto thedrivers, not for the amount of parcelsthey can deliver in their time slot, butcustomer service and awareness oftheir vehicle during delivery.Anne receives her parcel less than9 hours after she bought it online.Anne explains that driving to her localretailer would take her 20 minutes fora camera almost double the price ofwhat Amazon are offering.With the ease, speed and potentialsavings made on this product, it’shardly surprising that online shoppingis on the increase.backhousejones.co.uk

| 27Ad VAN tageAfter quickly surfing the internet it is apparent thataverage mileage for vans, like cars, varies hugely butmost statistics suggest that average annual mileage isin the region of 25-35,000 miles.There will however be many vans, for instance courier service repaired before causing significant consequential damage.vans, which do 3 or 4 times this mileage with numerous In addition, those repairs are carried out when expected anddifferent drivers operating up to 24 hours a day. And then of within the scheduled workings for the van meaning far lesscourse there are the one-man-bands doing local work where down time for the vehicle.the mileage is more in line with the average car doing theequivalent of 10-12,000 miles a year. Ultimately careful and properly planned maintenance should give you the adVANtage over the opposition; knowing yourWhy is this relevant? Vans, like most other motor vehicles, are fleet is in good working order when you need it and enablingobliged to have an annual MOT inspection, and that is - one you to have confidence that serious incidents or accidents- a ‘one size fits all’ check on your vehicle to ensure that on are unlikely to occur due to vehicle condition.one day of the year it meets the minimum safety standardsrequired. In reality, for most van operators of this type, one Avoiding the finger pointingcheck is not going to be enough to ensure the vehicle remainsin a roadworthy condition throughout the year. In fact, even The added benefits of properly managed driver maintenanceon the average mileage, it is highly likely that many vans will will hopefully make your drivers more aware of the conditionexperience tyre problems, braking component issues and of their vehicles. It is far easier to hold people to accountother general wear and tear throughout the year. when failures do occur, for example tyres should not become bald and if they do the driver is at fault; brakingMost operators of vans wait until something goes wrong systems should not wear out and if they do the garage is atbefore repairing it, often relying on their drivers eventually fault. Being able to hold both employees and/or contractorstelling them that there is a problem - and this may be over to account should further help improve vehicle condition asseveral weeks before deciding to send the van in to have those individual people or companies do not wish to haveit looked at. Is this an effective and cost-effective way of the finger pointed and be subject disciplinary action or somemanaging the fleet? other contractual claim.The problem with the wait-until-it-goes-wrong system Jonathon Backhouseof maintenance management is that it will go wrong at T: 01254 828 300inconvenient times, and furthermore, by the time it has gone E: [email protected] there could be a number of consequential issueswhich may have been avoided, for example having to replacebrake discs which have become damaged because thebrake pads have worn to the rivets.Proactive maintenance regimeA proactive maintenance regime of regular inspectionsin line with the annual mileage of the van together with arobust driver defect reporting system which puts a structureon the driver’s legal obligation to drive a fit and serviceablevehicle means that faults and defects are identified and T: 01254 828 300

28 |Scott Bell, provides a Q | I am a Transport Manager and the company I workpractical and pragmatic for is growing in size. I have recently been told bysolution to some of my employer that a new company structure is beingour readers important introduced and that the name on the Operator’s Licenceregulatory issues will change. Should I be concerned?Q | I have a mechanic who occasionally drives for me A | The Operator’s Licence is not transferrable betweenwhen I’m short of a driver. He is going to drive for me this companies. The first thing you need to establish is whetherafternoon and I need to know what he should record on it is a simple change of name where the company numberhis chart. remains the same. If this is the case, all you need to do is to notify the Traffic Commissioner of the name change. Normally however it is the company number which changes, and, in this case, you have two options; The new company must apply for a new operator licence before the change takes place.A | The tachograph chart has to record all activity from The second is that if the original company holding thethe end of the previous daily or weekly rest until the start licence is to become a ‘holding company’ (thereby it is theof the next daily or weekly rest. Therefore, the mechanic new company which will employ the drivers and operateneeds to make a manual entry for their work at the point vehicles), the holding company can be given permission bywhen they arrive at the depot to the point where they take the Traffic Commissioner allowing the new company to useover the vehicle including recording work, break or period the holding company’s licence.of availability. Sufficient time must be allowed in the first option for anOnce the mechanic takes over the vehicle they must application to be processed before the change takes place.insert their chart or digi-card and record any work already Failing to address a change properly will lead to seriouscompleted on that day, plus their walk around check as potential consequences including the possibility of the‘other work’ and thereafter use the chart normally until they impounding of vehicles and loss of repute. It may also haveleave the vehicle. If they go on to conduct further work away implications for your insurance and the vehicles are notfrom the vehicle the mechanic must make manual entries correctly licenced.to record this. They must complete the daily rest within 24hours from starting work (not from when they took over thevehicle but when they arrived at work). They will also incurthe obligation to commence a weekly rest before midnighton Sunday of the week they drove.backhousejones.co.uk

| 29Q&A Operator’s Question T imeQ | “To audit or not to audit, that is the question?” Q | I do not get my signed Preventative MaintenanceShould you have some form of independent audit of your Inspection (PMI) sheet back with my vehicle. I usuallysystems? receive it a few days later or, in the worst-case scenario it comes with an invoice at the end of the month. DoesA | The common-sense answer is of course, yes, you should. this matter?Complacency is as prevalent in every business as it is inlife. You will assume that everything is okay and may well A | The short answer is yes! You should consider the PMIbecome out of date with the latest ideas and concepts. sheet as a declaration that the vehicle is fit for the road,The benefit of an audit or ‘review’ as it is now commonly assuming of course it is signed to that effect. Without theknown, is that it provides a ‘friendly’ test against the latest signed PMI sheet your vehicle is, in essence, not fit for thethinking and good practice - and remember - it is always road as you do not have any evidence to suggest that it is.sensible to have an audit rather than wait for the DVSA tocome and give you one of theirs! The DVSA will visit often If your vehicle goes on the road after inspection (withoutafter an unsatisfactory, undesirable meeting with the Traffic the signed PMI sheet) and you are unfortunate to have anCommissioner, commonly known as a Public Inquiry. incident with the vehicle and it was subsequently discovered that there was a defect on the vehicle that contributed to theHowever, if you have an audit and fail to address the accident, you will to struggle to get an engineer to sign to sayrecommendations within the report, the audit will become it was ever fit for the road. A court would therefore assumea positive hindrance. This is because if the DVSA are aware that the vehicle was not fit for the road and that you shouldthat you have had an independent audit (and they often find have known this because you did not have the relevantout because you inadvertently tell them, regarding your documentation to suggest otherwise.actions as a positive thing), the Traffic Commissioner will askfor a copy. Scott Bell T: 01254 828 300Once the Traffic Commissioner has seen sight of the E: [email protected], they will compare what the DVSA has highlightedas issues /recommendations with your actions. If youhave not addressed the key points in the report the TrafficCommissioner will be suspicious of any reassurances yougive them at the time of the hearing. Broadly, you are onnotice that once you have had an audit, you must respond tothe recommendations and actions within it with immediateeffect. T: 01254 828 300

30 |behind the mechanicsIn April, the DVSA launched a revised and updatededition of its “Guide to Maintaining Roadworthiness”(the “Guide”).Whether you are new to the industry or This is intended to encourage operators to takean established and experienced operator, a proactive, evidence-based approach to thetransport manager or maintenance provider, management of safety inspection intervals.the Guide is a ‘must read’, as it containspractical up-to-date advice for anyone whose Whichever safety inspection interval is chosen,responsibilities include ensuring vehicle these intervals are maximum intervals androadworthiness and it sets out the standards they must not be exceeded. Further, the safetyand expectations against which you will be inspection interval chosen should not beassessed during any DVSA interventions. extended without prior notification in writing to the Office of the Traffic Commissioner at Leeds.Road safety is one of the main objectives of the Historically, DVSA Examiners and the Trafficoperator licensing regime. Ensuring that your Commissioners measured safety inspectionsystems for maintaining vehicle roadworthiness intervals in days (i.e. a six-weekly safetyare effective is therefore key. Yet, despite the inspection interval equated to 42 days);existence of the Guide (and its predecessors), however, the Guide allows some flexibility (asvehicle maintenance issues continue to be the the previous 2014 edition did) by recommendingmost common reason for Public Inquiry and we that safety inspections should be completedare regularly instructed to assist operators and within the relevant International Organisationtransport managers in connection with DVSA for Standardisation (“ISO”) week (i.e. Mondaymaintenance investigations and maintenance- to Sunday).related Public Inquiries. For example, if a six-weekly safety inspectionSo where are operators and transport frequency is used and the previous safetymanagers falling short of their obligations? inspection was completed on the Monday of week 10 of the ISO calendar, the next safety1. Stretched Safety Inspection Intervals inspection must be completed on or before the Sunday of week 16 of the ISO calendar; thisWhen you apply for your Operator’s Licence, scenario provides for a maximum permittedyou provide a statement of intent, which safety inspection interval of 48 days. Thisconfirms the intervals at which your vehicles should not, however, be misinterpreted as a six(and trailers) will be maintained (for example, six weekly safety inspection interval equating to aweekly). It is for you to choose the appropriate 48-day safety inspection interval because, if theinterval (taking into account factors such as the previous safety inspection was completed onage of the vehicle or trailer, the conditions under the Sunday of week 10 of the ISO calendar, thewhich it will be operated and the expected next safety inspection must still be completedannual mileage). The updated Guide replaces on or before the Sunday of week 16 of the ISOthe graph (of mileage vs inspection frequency) calendar; this scenario provides for a maximumthat was used to calculate safety inspection permitted safety inspection interval of only 42intervals with a table, which contains examples days or less.of time-based inspection frequencies forvarious operating conditions using case studies.backhousejones.co.uk

| 31T: 01254 828 300

32 | In our experience, despite the that the safety inspection record mustflexibility provided by the ISO week, include: (i) name of owner/operator; (ii)DVSA Examiners still regularly identify date of inspection; (iii) vehicle identity;stretched safety inspection intervals (iv) odometer reading (if appropriate);when conducting maintenance (v) a list of all the inspection manualinvestigations and stretched safety items to be inspected (your vehiclesinspection intervals feature in almost all and trailers should be inspectedmaintenance-related Public Inquiries. against the latest inspection manual);These stretched intervals may arise (vi) an indication of the condition ofwhere the operator has simply failed each item inspected; (vii) details of anyto maintain their vehicles or trailers defects found; (viii) name of inspector;at the stated frequencies; however, (ix) details of any remedial/rectificationthey are more commonly a result of: or repair work and by whom it was(i) missing safety inspection records done; and (x) a signed statement(see below); (ii) a failure to update the that any defects have been repairedforward planner to recalculate future satisfactorily and the vehicle is now insafety inspection dates where a safety a safe and roadworthy condition.inspection has been carried out early;and/or (iii) a failure to use appropriate Even where safety inspections‘off road’ notices to record any period are outsourced to an externalof time where a vehicle or trailer is out maintenance provider, you as theof service. operator or transport manager, remain responsible for ensuring that your2. Safety Inspection Records – vehicles and trailers are roadworthy.Missing, Incomplete, Out of Date You must therefore continuously review and monitor the quality ofA safety inspection record must be your external maintenance provider’scompleted for every safety inspection work (including the quality of theof the vehicle or trailer and records facilities and staff responsible forof all safety inspections and repair maintaining your vehicles/trailers) andwork must be retained for at least 15 their completion of the relevant safetymonths. inspection records to ensure that: (i) you are provided with a completedMissing safety inspection records safety inspection record in relation toinevitably cause issues for operators, every safety inspection of your vehiclesas (in the absence of any other and trailers; (ii) all sections of the safetyrecords) DVSA Examiners are unable inspection record are completedto establish if and when safety correctly; and (iii) the safety inspectioninspections have been carried out and record used is the latest version – ‘outwhether safety inspections have in fact of date’ safety inspection recordsbeen carried out at the stated intervals continue to be presented to DVSA(see above). Examiners and Traffic Commissioners at Public Inquiries!Incomplete safety inspection recordsare also a common shortcoming 3. Inadequate Brake Testingfrequently identified during DVSAmaintenance investigations and are Every safety inspection must assessa consistent feature at maintenance the braking performance of the vehiclerelated Public Inquiries. The Guide or trailer. The Guide re-emphasisesprovides examples of suitable safety that a dynamic assessment of brakeinspection records for both goods performance (using a roller brakeand passenger vehicles and confirms tester or decelerometer) should be carried out at each safety inspection.backhousejones.co.uk

| 33“A driver must undertake a daily walkaround check of their vehicle (andtrailer) before they commence drivingeach day.”A printout, which records the results rate (which can be done via yourof the brake efficiency test, should be Operator Compliance Risk Scoreobtained and attached to the relevant data), as it is expected that vehiclessafety inspection record. If, however, and trailers should meet minimumthe brake test equipment cannot legal requirements at all times – yourproduce a printout, brake efficiency vehicles and trailers should thereforeresults should be recorded on the have thorough and effective pre-MoTsafety inspection record. inspections (which should include a roller brake test and headlamp aim test)A common feature of maintenance- to ensure insofar as is possible thatrelated Public Inquiries is a lack of they will pass upon initial presentation.any dynamic assessment of brakeperformance and/or a failure by 5. Drivers’ Daily Defect Reporting –both in-house fitters and external Inadequate, Ineffectivemaintenance providers to properlydocument brake efficiency results. Drivers’ daily defect reporting is aFor example, the ‘brake performance’ critical element of any effective vehiclesection of the safety inspection roadworthiness system; however, inrecord is often left blank and, in the our experience, drivers’ daily defectabsence of a separate printout, it is reporting is frequently described bynot possible for a DVSA Examiner to DVSA Examiners during maintenanceestablish whether any assessment of investigations (where the outcome isbrake performance has in fact been ‘unsatisfactory’ and it normally followsundertaken at the safety inspection. that the operator will be called to aWhen analysing completed safety Public Inquiry) to be inadequate and/inspection records, operators and or ineffective where, for example:transport managers must thereforeensure that the ‘brake performance’ i) details of rectification worksection is completed correctly and, undertaken are not recorded - DVSAwhere appropriate, a separate printout Examiners are unable to establish ifis attached to the safety inspection and when rectification work has beenrecord. carried out;4. Low Initial Annual Test Pass Rate ii) there are a large number of ‘nil’ defects and a lack of ‘minor’ defectsA common issue at maintenance- (such as bulbs, mirrors etc.) identified –related Public Inquiries is an initial this would tend to indicate that driversannual test pass rate that is below the are identifying and rectifying any suchnational average. The Guide confirms defects but are not reporting them inthat operators must be aware of, writing; and/orand monitor, their annual test pass T: 01254 828 300

34 | iii) there has been an ‘S’ marked As the daily walk around check is a Continuous reviewing and monitoringprohibition issued. vital part of your vehicle maintenance of the quality of the systems in place system, you must continuously is essential to ensure that they areAn ‘S’ marked prohibition is, quite monitor the quality of your drivers’ sufficiently comprehensive to dorightly, the one that is most feared by daily walk around checks and defect the job. It is worth remembering thatoperators and transport managers. reporting to ensure that checks are it is not just complacent, carelessThe ‘S’ marking indicates that, in the being performed, and documented, and unscrupulous operators thatopinion of the DVSA Examiner issuing correctly. find themselves on the wrong sidethe prohibition, there has been a of the law -even diligent, responsiblesignificant failure in the operator’s This can be done using gate and well managed businesses canmaintenance systems. This failure checks (i.e. by stopping drivers on occasionally trip up (especially wheremight arise where your in-house fitter a random basis before they leave vehicle maintenance is concerned).or external maintenance provider the operating centre, undertaking amisses a defect during the vehicle’s or formal roadworthiness inspection of It makes commercial sense to ensuretrailer’s safety inspection, but, far more the vehicle and trailer yourself and that you are fully compliant, as thecommonly, arises where a driver fails comparing your findings to those of the penalties for, and consequences of,to spot an obvious defect during their driver); however, this can also be done non-compliance can range from thedaily walk around check of the vehicle using the safety inspection record (i.e. inconvenient to the very serious (i.e.or trailer before they commence by cross referencing any defects that revocation of your Operator’s Licence)driving. The Guide confirms that DVSA should have been identified during the and, sometimes, fatal! Operators arestill finds that one-third to one-half of drivers’ daily walk round checks with therefore actively encouraged to haveall prohibitable defects it identifies completed defect reports). regular independent reviews of theirat the roadside could have been compliance systems and, if you haveprevented by the driver conducting an Are Your Systems Effective? not done since the introduction of theeffective “walkaround” check. updated Guide, now is probably as The Guide recognises that there good a time as any to consider one –Either way, the imposition of the is no ‘one size fits all’ approach to don’t leave it to chance!‘S’ marked prohibition will result in vehicle (and trailer) maintenance butthe DVSA making an unannounced operators are expected to comply Laura Hadzikvisit to the operator’s premises to with the undertakings and conditions T: 01254 828 300conduct an in-depth maintenance recorded on their Operator’s Licence. E: [email protected] - the outcome of that Regardless of the system used, themaintenance investigation will always ultimate test is whether it is effectivebe ‘unsatisfactory’ (by virtue of the in ensuring that your vehicles (andfact that there has been an ‘S’ marked trailers) are in a fit and roadworthyprohibition) and will, in the majority of condition.cases, lead to Public Inquiry.backhousejones.co.uk

| 35FACTS & FIGURESThe Numbers Behind Operator LicensingHGV & PSV Operators NUMBER OF NUMBER OF NUMBER OF PUBLIC INQUIRIESLICENCES HELD VEHICLES APPLICATIONS (NON COMPLIANCE) HGV 72,547 HGV 378,476 HGV 11,714 HGV 810 PSV 8,756 PSV 95,634 PSV 1,231 PSV 181LICENCES ? OPERATOR TRANSPORT MANAGERREVOKED DISQUALIFICATIONS DISQUALIFICATIONS LICENCESHGV 261 SUSPENDED HGV 82 HGV 105 PSV 86 PSV 28 PSV 39 HGV 104 PSV 11DRIVERS VOCATIONAL VOCATIONAL DRIVERS CASES LICENCES LICENCES CALLED TO CLOSED VOCATIONAL REVOKED CONDUCT LICENCE SUSPENDED 21,222 262 HEARING APPLICATION 838 REFUSED 3,290 2,798 T: 01254 828 300

36 | Who’s in the ?backhousejones.co.uk

| 37John Heaton, The media at present is full of the Clandestine entrants, of course, haveSolicitor, discusses immigration stories just as locations rights as well. Many will be victimssome of the in Europe from Kos to Calais are of persecution though some will beissues surrounding full of would be migrants. By the economic migrants only. Some of themclandestine entrants time lorry drivers and our haulage will be criminals. All are desperate toand the current industry have contact with them, the gain admittance to the UK.guidance in respect law calls the same people “would beof the same. clandestine entrants”. The classic difficulty that lorry drivers in the UK find is that having arrived in But lorry drivers also have rights. the UK and driving on UK roads they They have the right to do their job then hear something from deep inside for their hauliers and on behalf of the their trailer which suggests that they customers without interference and have clandestine entrants on board. without physical threats. T: 01254 828 300

38 |What to do? Should the driver deliver his complicit in bringing in clandestines. Whilst there is guidance on thevehicle to the Police or UK Border With these worries and concerns, government website, a large part ofAgency, voice his suspicions and let he may feel tempted to find a quiet this guidance is to remain in the cabthe authorities “open the box”? location at which to open the doors of the vehicle and alert the authorities, and let his passengers walk away on an option already identified as beingThe driver’s involvement in bringing the basis this is the option least likely unattractive to the driver in thisthe legal immigrants then comes under to cause him trouble. situation.scrutiny. The Code of Practice under the Act The driver and the haulier have toIf he delivers them up to the authorities, (“the Code”) addresses a situation prove 3 things if they are to avoid athat might be strong evidence that where the driver forms a suspicion that civil penalty under The Immigrationhe is not knowingly part of an illegal he has clandestines on board prior to and Asylum Act 1999 (“the Act”). Thisscheme. embarkation to the UK. Unfortunately, criteria is outlined in Law at Section the Code is less explicit when it comes 34(3) of the Act, however the CodeThe driver and haulier will face heavy to situations where the driver suspects sets out good practice which assistscivil penalties unless they can prove he has clandestines aboard and has in proving the defence.they have the statutory defence. already arrived in the UK. For guidanceThey will have to prove the defence in this regard, the driver will have toagainst Civil Penalties under s34 of turn to the government website.the Immigration and Asylum Act 1999in order to stand a chance of avoidingthe penalty. If they cannot, they facepenalties of up to £2,000.00 each perstowaway.The stakes are high. The Civil Penaltiesmay be the least of the driver’sworries. He will be concerned thathaving brought clandestine entrantsinto the UK that the Police/UK BorderForce think he is criminally complicitwith them and perhaps being paid bythem. It is perhaps understandablethat a driver faced with the suspicionhe has clandestine entrants on boardis reluctant to go to the authorities.UK Border Force have a tough job andare under specially close scrutiny atpresent. The driver will fear that theyare suspicious of him and at the veryleast unsympathetic to the dilemma hehas found himself in.The driver is likely to fear personalarrest and criminal charges of beingbackhousejones.co.uk

| 39 “The driver has to balance a moral imperative to go to the authorities against a moral and legal duty not to imprison his passengers once he knows they are aboard and wish to get out.”1. No knowledge, and no reasonable 3. The driver must operate the system This of course would have to be in grounds to suspect clandestines are properly and be able to demonstrate a situation where the authorities on board. The haulier will generally he did so. The driver can expect to were satisfied that the driver was not not have been present personally be interviewed if clandestines are complicit in the importation of his when the vehicle is loaded or on the found and will have to demonstrate passengers in the first place. journey and will have no problems in interview that he knew nothing proving this element. The driver of his passengers and that he did In the absence of such comfort, drivers will often have been present when carry out appropriate checks and will remain in a dilemma and will make the vehicle is loaded and will of document them. up their minds as to what to do on a course have been driving with case by case basis. the stowaways on board prior to A further problem for the driver is that them being found. Often the driver he cannot imprison the people once he The absence of guidance from can do no more than deny actual is aware that they are in his vehicle. In the Government for a driver in this knowledge and point to an absence the end it is the driver’s decision as to dilemma deserves addressing – The of physical clues of a break in which what he is going to do. The driver has a Code, by ignoring the dilemma, does might have put him on notice. He balance a moral imperative to go to the not acknowledge the situation exists. could also point to the system of authorities against a moral and legal Of course at the time when the driver checks and his operation of the duty not to imprison his passengers has to make a decision having formed systems (see below). once he know they are aboard and the suspicion that he has clandestines wish to get out. Once he knows they on board will be without the benefit of2. An effective system to prevent the are there the driver may well have legal advice. carriage of clandestines. Both driver some duty to ensure that they are not and haulier will have to demonstrate in danger. The sensible advice to the In the meantime, the number of the operation of a proper system driver would be to go to the authorities. migrants in the Pas de Calais increases for ensuring the loading and The driver, of course, finds himself in and the politicians wrestle with the security of the vehicle without an impossible dilemma for the reasons situation across Europe. stowaways on board. They will have already stated. to demonstrate an effective system John Heaton of locks and seals and inspection The Code ignores the dilemma. It is T: 01254 828 300 procedures for the vehicle prior desirable that the Code gives specific E: [email protected] to sealing up and regular interim advice as to what a driver should in checks by the driver on route. Of these circumstances. The Code by course, each time he stops he ignoring the dilemma does not even potentially gives the Clandestine acknowledge that the situation exists. entrants the opportunity to sneak It would be possible for the Code on board. All of this must be to acknowledge the dilemma and properly documented and ideally for instance to indicate that the Civil (according to the the Code) have Penalties, if they applied because a the fact that he is carrying out the driver could not prove the defence, checks witnessed by a third party. would be capped at a lower level The haulier must train the driver and in cases where a driver went to the demonstrate when this was done authorities. and how it was kept up to date. The driver’s knowledge should be audited. T: 01254 828 300

40 |backhousejones.co.uk

| 412018 Modern Families Index Summary ReportFlexibleworking still notthat flexible?In an age where many of us ‘want it The survey found that availability ofall’, are businesses offering ‘flexible flexible working was most restrictedworking arrangements’ delivering? in accommodation and food, manufacturing, education and humanThe Modern Families Index is a health and social work sectors. Thecomprehensive survey of how working Transport and storage sectors werefamilies manage the balance between found to be the worst sectors in termswork and family life in the UK. This of parents having control over theyear’s survey found that less than number of hours worked, start andhalf (44%) of parents felt that flexible finish times and the place of work.working was a genuine option formothers and fathers in their workplace, What needs to change?despite only 16% saying that they didnot want to work flexibly. The lack of The right to request flexible workingflexibility can be damaging on parental has not gone far enough to deliverrelationships and wellbeing. work life balance for families. Flexible working is, too often, an individualAll employees have the right to request arrangement for an individualflexible working and employers must employee and many parents do notdeal with such requests in a reasonable see it as an option to them.manner, for example by assessing theadvantages and disadvantages of The UK needs a flexible workingthe application, holding a meeting to revolution so that flexibility is delivereddiscuss the requests with the employee as the normal way of working.and offering an appeal process. Employers should use the ‘Happy to talk flexible working’ straplineThe survey found that, for some to encourage employees to makeparents, working flexibly isn’t, on its applications for flexible working and toown, delivering enough control to help recruit for more flexible and ‘human-achieve a better work life balance. Of sized’ jobs.those parents who worked ‘flexibly’,nearly one third had restricted or Laura Smithno control over where they work, a T: 01254 828 300quarter had restricted or no control E: [email protected] working hours and one fifth hadrestricted or no control over their startand finish times. T: 01254 828 300

42 |Update on overtimeand holiday payCase summary from the Employment AppealTribunal regarding overtime and holiday pay.backhousejones.co.uk

| 43Holiday pay and overtime – you’re The question of holiday pay has come At the initial employment tribunalprobably sick of hearing about it. back under the spotlight in a recent hearing, the Tribunal decided that theSince the Bear Scotland decision Employment Appeals Tribunal (“EAT”) first of his claims should be includedin relation to overtime payments case relating to voluntary overtime. and not the second. In the interim,when calculating holiday pay, the EAT handed down its decision inthe landscape has changed Facts Dudley Metropolitan Borough Councilsignificantly. v Willetts which held that voluntary In Flowers v East of Anglia Ambulance overtime should be included whenThere have been a number of cases Trust UKEAT0235/17/JOJ, Mr Flowers assessing “normal remuneration” forwhich have, in effect, widened the (F) was a member of ambulance staff. calculating holiday pay.scope for which overtime payments He claimed for an underpayment inneed to be taken into consideration. respect of holiday pay for two types of In view of Dudley, F appealedWhat started out as a rule requiring overtime: to the EAT. The EAT applied theemployers to take account of payment decision in Dudley and found thatfor overtime which was guaranteed or 1. Non-guaranteed overtime which both non-guaranteed (mandatory)mandatory, if offered, has gradually related to tasks which must be carried overtime and voluntary overtimeexpanded to included overtime worked out (for example, a call out where it should be taken into considerationregularly, non-guaranteed overtime ran over the end of his shift); and under the Working Time Directive.and voluntary overtime. Interestingly, there was also a question 2. Voluntary overtime about the wording of F’s contract as T: 01254 828 300

44 | the wording of the contract in “The impact of overtime on holidayrelation to holiday pay did not pay calculations has been a hotdistinguish between non-guaranteed topic for employers since recentand voluntary overtime. Court decisions have been filtering through the legal system. ”The reality is that for the moment atleast it doesn’t really matter what the Specifically, the guidance covers the The guidance makes clear that thecontract says, but it is possible that following areas: court decisions apply only to theat some point in the future, wording of four weeks of annual leave whichcontracts could be significant. What • the different types of overtime are required under European law. Allcan be said, at this stage, in relation workers in the UK must receive anto wording of contracts, that setting • working time limits on overtime additional 1.6 weeks of leave by law,down a fixed daily payment for holiday and some receive more as part of theirpay where employees work overtime, • payment for overtime terms and conditions of employment.either mandatory or voluntary, is a It is only four weeks of annual leaverecipe for disaster. • overtime for part-time workers that this applies to.Comment • the impact of overtime on holiday While, many employers choose to calculations apply the judgments to extra annualAt present, when calculating holiday leave too, this is not a legal requirementpay for employees who work overtime, Impact of overtime on holiday but can help to keep the processesif you want to keep yourself out of calculations simple and understandable foran employment tribunal and your employees and payroll. The alternativeworkforce happy, it is advisable to look The impact of overtime on holiday pay is that some employers state in theirat all overtime worked in the 12-week calculations has been a hot topics contracts that the above applies to thereference period prior to the holiday for employers since recent Court first 20 days leave an the remainderfor which payment needs to be made. decisions have been filtering through will be paid at the basic rate.The recent case law does not affect the legal system. We have reported oneither the 3-month gap or 2 years’ the developments and this guidance As we have noted in previous articles,backstop rules. now seeks to build on that for clarity. the guidance being from case law renders it an indication and caseIt should be noted that the Trust in By way of re-cap, when calculating specific. There may be circumstancesFlowers have sought leave to appeal a worker’s statutory holiday pay which give rise to challenging applyingto the Court of Appeal so this may not entitlement, employers are to use an the above guidance however, legalbe done yet. It’s also worth adding average of the workers preceding 12 advice is recommended in orderthat there are a number of cases in weeks pay, to determine what their pay to determine how these decisionsthe pipeline relating to the question of for holiday leave being taken should will impact on the organisation andovertime/commission payments and be. consideration to any prospectiveholiday pay and the satellite issues that employment tribunal claim should become with it so that, taken together What is to be included in the given.with Brexit, means it is likely to be calculation has been widely debatedsome time before we have a “once and however of note, caselaw has indicated Heather Lunneyfor all” definitive position. that all overtime worked should be T: 01254 828 300 included when calculating a worker’s E: [email protected] last… Some Guidance on statutory holiday pay entitlement. TheOvertime only exception to this is overtime that is worked on a genuinely occasionalACAS have recently issued guidance and infrequent basis, need not beon what constitutes overtime. The included.guidance itself gives some much-needed direction on an issue thatmany employers have been grapplingwith for some time.backhousejones.co.uk

What if ?Answered24 hour legal advice fromsector-specific solicitorsfor a fixed monthly fee.For more information:T: 01254 828 300E: [email protected]

46 |Would you let yourstaff chose theirown working hours?With employees That’s exactly what PwC, one of the After carrying out a study on thedemanding more Big Four accountancy firms, has done. aspects individuals prioritise whenflexibility regarding PWC has created the “Flexible Talent looking for a new job, PwC concludedtheir working Network”, which give new recruits the that 46% of the 2000 participants thatarrangements, is the ability to list their skills and the working took part considered flexible working“9 to 5” working day hours they would prefer, which could hours and a good work life balance tomodel beginning be anything from only working several be of upmost importance.to be outdated? months of the year to reduced weekly hours. The aim is to attract workers The scheme was launched in thebackhousejones.co.uk who do not fit, or do not wish to summer and has already seen some in conform, to the traditional Monday to excess of 2,000 applicants, indicating Friday, 9-to-5. that this is highly attractive to individuals. As well as this, PwC also Rather than applying for a specific role, have a programme known as “Back they will apply based on their skills to Business” whereby individuals who add what pattern works for them. The have taken a lifelong career break, can scheme then aims to match recruits to restart their career by applying for a specific projects instead of job roles 6-month paid internship. and therefore should entice a broader range of talent to the firm.

| 47 NEWS BRIEFPwC believes that it will gain a This flexibility allows PwC to employ Employers should embrace flexiblecompetitive advantage over other skilled workers for the times that are working rather than seeing it as afirms by supporting people moving in convenient for both themselves and hindrance to their business. In someand out of work throughout their life. the employees. circumstances, it shouldn’t matterAn example where the program has when or when the work is undertaken,worked particularly well was through As Laura Hinton, Chief People Officer so long as it is completed within theemploying through a 100-day contract. at PwC rightly pointed out, this required remit. approach takes flexible working to aA member of the Flexible Talent whole new level. Whilst there are in some instancesProgram who was studying to be a genuine business reasons as to whyfinancial analyst was also raising two Flexible working has been available to flexible working in not an option,young children. In November, she all employees with at least 26 weeks many employers are often too quickcarried out training for 10 days to get service since June 2014, however, to dismiss an approach for flexibleto grips with the Company. She then based on the recent survey the working as unworkable without givingreturned in January after spending time “Modern Families Index” less than serious consideration as to whetherin China with her family to finish the half (44%) of parents felt that flexible it could in fact work and how it could90 days when the Company was very working was a genuine option for potentially be beneficial for bothbusy. She will then return in October mothers and fathers in their workplace, parties.to start the 100-day contract again. despite only 16% saying that they did not want to work flexibly. T: 01254 828 300

48 |Ground breakinglegal action fortruck cartel casebackhousejones.co.uk

| 49Backhouse Jones, in conjunction withAddleshaw Goddard, have lodged a ground-breaking legal action with the CompetitionAppeal Tribunal (CAT) on behalf of the RoadHaulage Association (RHA).The application, lodged on 17 July Commenting on the case, Steven2018, signals the start of a claim against Meyerhoff, Director at BackhouseEuropean truck manufacturers found Jones (legal representatives for theto be colluding in a 14-year price fixing RHA) added: “The submission of thecartel (the “Trucks Cartel”) between application is the first formal step1997 and 2011. The application seeks in the RHA seeking to be appointedcompensation in excess of £1 billion for class representative on behalf of roadthousands of road haulage operators haulage operators who suffered losswho have suffered loss as a result of because of the Trucks Cartel. The RHAthe illegal cartel activities. will be asking the Tribunal for what’s called a “collective proceedings order”The legal action, which is open to RHA which will authorise the RHA as classmembers and non-members alike, representative and define the classcurrently has over 4,100 road haulage of businesses that can opt in to theoperators signed up with a further claim. As the claim is being brought on720 who have registered an interest. an opt-in basis, businesses wanting toIt is anticipated that the number of be part of the claim will need to opt inclaimants signing up will increase once the Tribunal has authorised thesignificantly over the coming months RHA to be class representative.”and this can be done by visiting www.truckcartelleaglaction.com Mark Molyneux, partner at Addleshaw Goddard said: “This is a significantEarly indications suggest that UK claim and we expect the overall valuetransport operators which opt into the is likely to exceed £1 billion. This wasclaim could be entitled to damages a lengthy infringement of competitionof £6,000 for every 6-tonne and law that we know has affected aroundabove vehicle they bought or leased 600,000 purchasers of trucks in thebetween 1997 and 2011. The claim UK between 1997 and 2011. We knowis fully funded by Therium Capital cartel activity is extremely damagingManagement Limited and has the to customers and truck purchasersbenefit of After the Event Insurance, should be entitled to be compensatedallowing claimants to participate in the for the loss that they have a sufferedcollective proceedings without cost to as a result of this activity. We hope thattheir own business. the CAT will agree that this is exactly the right type of claim that should be permitted under the new regime and allow the RHA to bring a collective claim on behalf truck purchasers.” T: 01254 828 300

50 | David Went, barrister at Exchange decision, which will be heard by the belongs to a group of companies whichChambers comments: “This is the European Courts in due course. also purchased or leased such trucksfirst case in which anyone has tried registered in the United Kingdom.to use the new regime that allows a Opt-In Collective Proceedingsrepresentative to bring a collective As the RHA has proposed to bringclaim on behalf of businesses The RHA is using the collective collective proceedings on an opt-inimpacted by a competition law proceedings regime before the basis, road haulage operators wishinginfringement. The claim being brought CAT. The regime was introduced to join the legal action are requiredby the RHA on behalf of the haulage relatively recently in October 2015 to sign up to the claim. This can besector is precisely the type of claim by the Consumer Rights Act 2015 to done by visiting the RHA’s website atenvisaged under the new rules. There cater for group actions in the area of www.truckcartelleaglaction.com. Anyhave been two previous attempts to competition law. This regime allows road haulage operator that does notuse the new regime but they were both an industry body, such as the RHA, to opt-in to the RHA claim will not beopt-out collective actions on behalf make an application to become class entitled to claim any compensationof consumers. We don’t think that representative on behalf of businesses in the event that the RHA’s collectivethe RHA’s claim will face the same or consumers affected by competition claim is successful.difficulties that beset those claims not law violations. The core notion ofleast because it is possible to link the collective proceedings is that they The RHA has secured third-partyoverall claim value back to the amount group together similar claims that raise litigation funding on competitive termsof loss actually suffered at the level of common issues (i.e., the same, similar, so that there is no cost to operatorseach individual claimant.” or related issues of fact or law). who sign up. If the claim is successful, the funders will take a fee from theBackground to the “Trucks Cartel” As a not-for-profit organisation and compensation awarded to compensate the only trade association dedicated them for the risk of providing the capitalThe RHA’s claim for compensation is to road haulage in the UK, the investment. The RHA has also takenbased on the European Commission’s RHA believes it is well placed to be out litigation insurance to protect bothdecision in July 2016 to fine European appointed class representative and itself and operators signing up to thetruck manufacturers MAN, Daimler/ expects the CAT to hear its application claim in case the claim or aspects of itMercedes, Iveco, Volvo/Renault and early next year. If the CAT were to grant are unsuccessful.DAF, €2.93 billion after they admitted the RHA’s application, this will be theoperating the Trucks Cartel. The first time an application to use the new Steven MeyerhoffCommission found that the Trucks collective claim regime will have been T: 01254 828 300Cartel operated between 17 January successful. E: [email protected] and 18 January 2011 (the “CartelPeriod”) and related to trucks of six The claim has been issued against James Lomaxtonnes and over. The illegal activities DAF, Iveco, and MAN, although the T: 01254 828 300included: claim covers all makes of trucks, E: [email protected] including trucks manufactured by• fixing gross list prices; companies that were not part of the Trucks Cartel.• agreeing the costs that truck purchasers would be charged for As part of the application, the RHA has emissions technologies (Euro III, IV, proposed a class of persons entitled V and VI); and to opt in to the legal action. The class comprises any person who between• delaying the introduction of those 17 January 1997 and the date of a emissions technologies. notice to be published later during the proposed collective proceedingsWhile Scania was not party to the purchased or leased for road haulageoriginal decision, having denied its operations (both hire and reward andinvolvement in the Trucks Cartel, the own-account) new or pre-ownedCommission subsequently found it trucks either (a) registered in the UK orguilty and imposed a fine of €880 (b) registered in EEA Member Statesmillion. Scania has appealed this other than the UK provided the personbackhousejones.co.uk