A message to Directors, sole traders and business partners: don’t leave it to the Transport Managers! You have a job to do, too!

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

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

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

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

This area comes regularly to the fore in DVSA investigations and at Traffic Commissioner hearings.

Senior Traffic Commissioner Guidance

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

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

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

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

Of huge importance is that failure to have oversight on the part of an operator is a good repute or fitness issue. In some situations, operators may have actual knowledge of breaches but fail to take any or enough action, or they may have no knowledge of non-compliance for whatever reason, which also raises the issue of whether they are of good repute.

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

The Senior Traffic Commissioner guidance set out further principles:

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

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

Meetings

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

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

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

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

It is often the case at Public Inquiry hearings that Traffic Commissioners will make reference to Key Performance Indicators (KPIs) to be identified by operators for inclusion in such meetings so that senior management is able to hone in on really important data to show there is compliance.

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

Training

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

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

Criminal law

The need for directors, partners and owners to be properly engaged in transport management is not simply confined to operator licensing but to other possible actions in the form of criminal proceedings for acts caused by drivers and vehicles (and indeed those that do not involve transport).

Where senior management leave transport teams unsupervised, the business is exposed to the risk of prosecution, and this may involve the prosecution of individuals.

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

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

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

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If you require advice and assistance concerning any investigation carried out by DVSA and/or advice concerning operator licensing (including Traffic Commissioner Public Inquiry and preliminary hearing matters), please contact us using our online enquiry form or by calling 0330 404 7949.