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Legislation: A salutary tale for fleet operators

18 January 2013

A recent case has stressed the importance of specific obligations of a business when a health and safety violation occurs

If convicted of a health and safety offence, businesses holding an Operator’s License must ensure they contact the Traffic Commissioner, regardless of whether the conviction is transport related. Often this can be confusing to businesses, as we see with the recent case of Birstall Demolition, which was diligent about driver training but omitted to report a health & safety conviction (£10,000 fine) and convictions of individual drivers to the Vehicle and Operator Services Agency (VOSA).

The subsequent public enquiry withdrew the company’s Operator’s (O) licence for 2 weeks and permanently reduced the licenced fleet size from 7 to 4, thereby effectively halving the number of vehicles which could be operated by the business.

To add to the picture it is worth noting that the company had been the subject of a previous visit by VOSA in 2010 when issues about the maintenance system for the HGVs was called into question - VOSA had the company on its radar so to speak.

The director of the business was criticised by the Traffic Commissioner for having so little knowledge of her duties as the O licence holder and as a result the business is now operating with a much smaller fleet and a threat of permanent closure.

The lessons to be learned here are multiple but those who are diligent in their duties need not lose sleep as a result.

An Operator’s Licence is what is required to operate goods vehicles (HGVs) or public service vehicles (PSVs – which are buses or coaches to the uninitiated). The process of obtaining an O Licence is not just a matter of filling in some forms as you may do to obtain an ordinary driving licence.

There are many hurdles to overcome before you can be deemed a fit and proper person to hold such a licence. The conditions relate not only to the holder of the licence but also to the premises and number of vehicles. A declaration has to be made about all convictions which are not ‘spent’ under the rehabilitation of offender’s legislation.

VOSA is the government agency tasked with regulating all O licence holders and conducts checks on vehicle operators at their sites and out on the road, where they are often seen checking goods vehicles are not overloaded or using the wrong sort of fuel.

Any matters for review of the terms of a licence are dealt with by the Traffic Commissioner for the area as in the case above. After all that effort it might be thought that an O licence holder would be very diligent about the ongoing duty to declare any other convictions which arise during the validity of the licence.

The consequences of not doing so are potentially drastic for a business as upon discovering such a failure to report, VOSA can seek a public enquiry by the Traffic Commissioner who can impose conditions on the licence or revoke it completely, either permanently or for a limited time.

The power extends to limiting the number of vehicles licensed to operate from a particular site or across a business operating from multiple locations.

This is exactly what happened to the business described in the actual case noted at the beginning of this article.

So what can be done to avoid such problems?

VOSA has several publications to assist O licence holders and makes it clear that essentially all convictions (called ‘relevant convictions’ in the guidance) must be declared both when the application is made and during the term of the licence granted. This applies not only to the business or the individual licensee but all those who operate the regulated vehicles.

It is entirely appropriate for the driving public to expect large vehicles to be in the control of drivers and owners that maintain the lorries and drive them carefully and it may be reasonably suggested that an operator that has overloaded or failed to maintain its vehicles is more likely to be involved in an accident.

Some motoring or health and safety offences may result in low fines and a little inconvenience to a business, but an appearance before the Traffic Commissioner is an expensive experience and the organisation is likely to suffer as a result.

Any business that tenders for public works contracts usually needs to declare health & safety convictions anyway and an intervention by the Traffic Commissioner is also going to put them at a disadvantage in the tendering process.

The steps to avoid such problems, especially when the current economic climate makes every job hard to get and hard to keep, are simple as every operator should be managing their drivers so they know about convictions and should stay informed about their reporting duties to avoid such woes as have befallen the demolition contractor in the recent case.

Crispin Kenyon is the lead partner in the Weightmans LLP London Regulatory Services Unit which specialises in advising businesses on health & safety and transport related issues:
Crispin.Kenyon@Weightmans.com





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