Backhouse Jones Watermark

Driving you out of business?

26 June

Driving you out of business?
Many good operators see their drivers as invaluable assets to the business whilst at the other end of the scale, some operators see the driver as a necessary evil. The relationship between the operator and the driver is a complex one. The Traffic Commissioners and the enforcement authorities look closer at the relationship as the driver is often seen as the front-line indicator of the business.

Arguably, unlike any other staff members within the business, it is drivers that can either promote a successful and compliant image or cause untold damage through the way in which they interact with customers, other road users and the vehicle.

Enforcement and drivers
From an enforcement perspective, operators cannot afford to overlook a driver’s failings by adopting the “he’s a good driver but…” type of attitude. There is now an expectation that drivers will be properly trained and managed. The simple fact that an individual holds a driving licence does not mean that he or she is competent to drive a commercial vehicle and ultimately, it is the operator’s responsibility to ensure that their drivers are, in fact, competent.

The Traffic Commissioners and Courts expect employers to be pro-active in training and monitoring their drivers so that they are fully aware of their responsibilities, are properly trained in how to perform their role and are disciplined when they are found to be non-compliant.

In respect of the maintenance system, drivers are at the front line. Whilst a vehicle may receive a preventative maintenance inspection every six to twelve weeks, the driver sees the vehicle on a daily basis. The daily first use inspection is an operator’s primary tool for ensuring that a vehicle is in a roadworthy condition. If the driver fails to complete a proper inspection then prohibitions, prosecutions and ultimately Public Inquiries can follow.

Anecdotal evidence suggests that about one half of all prohibition notices are for items that a driver could or should have spotted on a first use inspection. Whilst, following the introduction of roadside fixed penalties, the driver now might be hit in his or her own pocket with a fine or points endorsed on their driving licence for a failure to spot such a problem, the impact on the business can also be severe. The same principles apply to issues such as overloading, driving at excessive speed, load security or failing to comply with drivers’ hours.

Training drivers
The authorities now expect that all drivers will be properly trained in how to perform their job including conducting daily checks. The often-heard excuse for a failure to train, “he’s an experienced driver and been doing this job for years”, is not acceptable.

Regardless of how long an individual has been driving or who they have previously worked for, operators cannot assume that a driver knows the full extent of his or her obligations. The driver must be properly trained, hold the driver CPC and be properly retrained throughout their career. Best practice suggests that the training is evidenced in writing. It is also recommended that drivers are given reference materials such as guides and company handbooks. Consider what training the drivers are receiving and how relevant it is to the work they undertake for you.

Monitoring drivers
After training, the driver should be properly monitored and the channels of communication between drivers and operators should remain open. It cannot be assumed that he will simply do as he has been told. Listen to feedback from the driver and also from other colleagues and clients.

With regards to daily vehicle inspections, it is now common practice for operators to carry out random audits of vehicles. This will involve stopping a vehicle before it leaves the operating centre but after the driver has supposedly conducted his own checks, and the transport manager or fleet engineer conducting their own walk round inspection. If defects are found which the driver has missed, then questions must be asked as to whether re-training and/or disciplinary action is required. The writer knows of one fleet engineer who leaves notes attached to key components requesting the driver calls him.

If the driver fails to make the telephone call, then the engineer knows that he has not properly checked the vehicle and investigates the matter further. Other businesses take a more ‘high risk’ approach and place deliberate defects on vehicles. This really does require a good procedure to ensure the vehicle does not go out on the road, but the fleet engineer can be sure that if the driver fails to report the matter to him, he has not done a thorough check.

Where a driver is found to be failing to carry out his or her responsibilities there needs to be a proper investigation and a paper trail of the investigation should be recorded. It may be that the driver has misunderstood the training given. Maybe the driver is ill or is in poor health and you, or he, haven’t noticed.

Alternatively, he could have committed a wilful breach. If disciplinary action is required, then proper procedures should be followed. A disciplinary interview should take place and there should be a proportionate decision as to what action should be taken. Depending on the employee and the failing, this could range from a verbal warning through to dismissal. A clear system must be in place and properly followed.

Disciplining drivers
Many operators don’t want to dismiss drivers who have failed. Whether it is misplaced loyalty to the driver or a fear of employment legislation and possible claims of unfair dismissal. If dismissal is warranted then this is what the Traffic Commissioner will expect. Any argument that the driver will be “hard to replace” or is the proverbial “good lad” will fall on deaf ears. Such arguments say that the business is happy to run vehicles knowing that there is a good chance that the drivers will not be fulfilling their obligations and may be breaking the law. Traffic Commissioners see this as putting financial motives before compliance.

Many operators have fallen foul of a failure to properly discipline drivers. The writer recalls one incident where a company’s driver handbook specifically described one course of action as amounting to gross misconduct and that it would lead to summary dismissal. When it was found that a number of drivers had committed such actions but had not been dismissed, the Traffic Commissioner demanded a full explanation wanting to know whether the drivers failings had in fact been committed with the knowledge or consent of the business – the failure to dismiss in line with the handbook was, in the Commissioner’s view, evidence that the company was happy to condone the misconduct.

Criminal prosecutions
The failure to manage drivers can also lead to prosecutions before the Magistrates and Crown Courts. If it is found that drivers are not fulfilling their obligations with the knowledge of senior managers, then it could be the senior manager who is ‘in the dock’ alongside the driver. This applies equally to accidents arising from defects which could have, and should have, been spotted by the driver to the falsification of records by a driver, whether it is a driver defect report sheet or driver’s hours documentation. It is also worth noting that often the scale of the error does not bear any relationship to the scale of the accident or the subsequent criminal consequences.

Operators do need to carefully manage drivers. Through training, auditing and reviewing all possible data, failings can be detected. The driver who does his or her job properly can be an asset to the business. This is not just in terms of avoiding prohibitions or prosecutions, but such drivers often present a good image to customers, road users and other prospective clients for the company. Proper management (and disciplinary action against those who do not perform) is essential.

For all related matters, please contact a member of our regulatory team on 01254 828 300.

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