Corporate Manslaughter

Q. I keep hearing about the new corporate manslaughter law that started in April. Can directors, senior managers or other individuals be prosecuted for the new offence?

A. No. The offence is aimed at cases where management failures lie across an organisation and it is the organisation that will face prosecution for corporate manslaughter (called corporate homicide in Scotland). The penalties for this corporate offence are a fine, a remedial order (where the court orders the organisation to get its house in order) and/or a publicity order (where the organisation has to publicise the offence and penalties).

Prosecutions will be brought against the organisation which is usually represented by its lawyers in court, although individual directors, managers and other employees may be called as witnesses.

An individual cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter either. However, where individuals are culpable, they can already be prosecuted for gross negligence manslaughter (culpable homicide in Scotland) as well as for health and safety breaches and the new legislation does not change this.

We have produced a full compliance guide on corporate manslaughter which is available to FTA members to download from the website, or from the Member Advice Centre.

 

Small vehicles towing trailers

Q. Occasionally our van drivers have to move equipment on trailers. I understand there are many legal considerations with this. What are the key things we and the driver need to watch out for?

A. You are quite right that towing a trailer can change key legal considerations, particularly when the relevant weight of the combination exceeds 3.5 tonnes. What this means in practice depends on the area of law, but it is always the potential or gross weight (also known as maximum permissible mass) of the vehicle and trailer that is important, not what it actually weighs at a given time.

      The three key areas for you to consider are:

• Operator licensing - where a trailer with an unladen weight exceeding 1,020kg takes the gross weight of the combination over 3.5 tonnes
• Drivers' hours and records - you may need to use a tachograph when towing if the maximum permissible mass of the combination exceeds 3.5 tonnes. Maximum permissible mass means the sum of the vehicle and trailer gross weights or the gross train weight of the drawing vehicle, whichever is the lesser
• Driver licensing - our driver may not have the correct driving licence entitlement to tow a trailer when its gross weight is over 750kg, and the combination gross is more than 3.5 tonnes

I would suggest that you discuss these areas in detail with the Member Advice Centre if you are an FTA member, or a specialist solicitor if you are not, as the exact circumstances of your operations will make a big difference to the legal implications.

Once you have the key legal considerations sorted, your driver must understand the key safety implications before using the vehicle, regardless of the gross weight of the combination. He or she should:

• check that the coupling height and capacity is right for both the trailer and van
• carry out a roadworthiness check of the trailer at the same time as the vehicle
• make sure the lights and brakes are in working order and that the registration number of the van is shown at the rear of the trailer
• know the load capacity of the vehicle and trailer. The driver needs to be aware of the maximum permissible train weight of the van as well as maximum capacity of the trailer. They should look for a plate on the vehicle or in the manufacturer’s handbook, where a maximum trailer weight may also be recommended. When loading the trailer, they should follow the safety benchmark which recommends that the actual weight of the trailer should never normally exceed 70 per cent of the actual weight of the van. If the trailer is too heavy for the van, the combination becomes dangerous on hill starts or it can ‘snake’ out of control.

Digital tachographs and driving time

Q. We have recently started operating vehicles fitted with digital tachographs and have noticed a general increase in the amount of driving time being recorded by our multi-drop drivers. Can you explain what is happening?

A. Most analogue and all digital tachographs automatically record driving when a vehicle moves. However, digital equipment also ‘rounds up’ the amount of time recorded as driving as follows.

• For a calendar minute, if any driving activity has occurred within the minute, the whole minute will be recorded as driving
• For a calendar minute, if any driving activity has occurred within both the immediately preceding and the immediately succeeding minute, the whole minute will be recorded as driving

In the example above, the top line shows the actual activities of a driver over a 3 calendar minute period. He has stopped driving 20 seconds into the first minute and then driven again 140 seconds later. The bottom line shows how the rules governing the way the digital tachograph records driving time mean that this short break in driving has not been recorded at all by the equipment.
           
The amended EU drivers’ hours rules now contain a definition of driving time, which states that whatever is recorded by the equipment is driving. So, for your multi-drop operations in particular, this can result in significantly more driving being shown for drivers of vehicles fitted with digital equipment than with analogue, and mean that your drivers may have to change their break patterns or take more breaks earlier and have less driving time available to them in the day, week and fortnight.

Operator licensing

Q. I have just started at a new company whose main business is not transport. The company operates vehicles over 3.5 tonnes but has no CPC holder. Is this OK?

A. Whether a company needs a professionally competent transport manager, depends on what type of operator's licence is held.

There are three types of operator’s licence, which determine the use to which the vehicles may be put. A restricted licence only allows the carriage of goods for own account purposes, both nationally and internationally. In summary, own account carriage includes the carriage of goods owned, sold, let out, on hire or hired, produced, processed or repaired by the operator where transport is ancillary to the operator’s main activities. A standard national licence permits the carriage for own account, both nationally and internationally and for hire or reward in GB. A standard international licence permits the carriage of goods for both own account and hire or reward nationally and internationally.

A simple way to check which licence the company currently has is to look at the colour of the vehicle discs.

• Orange = restricted
• Blue = standard
• Green = standard international

If the company needs to change the type of licence it holds, it can apply for a variation on form GV80A.

Standard licences (whether national or international) must have at least one nominated transport manager who is professionally competent. This usually means someone who holds the relevant Certificate of Professional Competence (CPC), although there are some other acceptable alternatives.

Transport managers are not nominated on restricted licences, although bear in mind that you must still meet your operator licence undertakings to have proper arrangements in place to ensure compliance. In order to achieve this your transport operations must be managed by someone who understands road transport law. One way to achieve this level of competence is to obtain a transport manager CPC qualification.

Driver licence checks

Q. Some of my drivers are questioning why we have to check their driving licences so often and why we need to take a photocopy of them. Can you advise me on the legal position for employers on driving licence checks?

A. Under the Road Traffic Act 1998 it is an offence for a person to cause or permit another person to drive a vehicle without the correct licence. Also, where a vehicle is being driven without the correct class of licence being held, most insurance polices would be invalidated. This in turn could lead to the offence of causing or permitting the driving of a vehicle without insurance.

In other words, as an employer, you have a legal obligation to satisfy yourself that your employees (or anyone you 'cause or permit' to drive a vehicle) are entitled to drive the relevant class of vehicle. If you fail to do this, you risk being prosecuted for causing or permitting the offences of driving without a licence and (in most cases) insurance. In the court case of Ferry Masters Ltd v Adams (1980), a company was held to have permitted its drivers to drive without a licence where it had no system of checking that drivers renewed their licences.

Therefore, a system of checking licences is required. It is strongly advisable to take copies of licences at the time of checking. This acts as evidence that you have carried out the check. It also allows you to check the issue number against the previous check - this guards against a driver showing you an old 'out of date' licence which has been reported as lost, but used to cover up subsequent problems with the licence. In addition, if you had been shown a fraudulent or counterfeit licence, which was not detected as such at the time of the check, you also have something to show to a court to defend yourself or provide mitigating evidence. As with all personal information, you must ensure that you keep it safe and secure in line with the Data Protection Act.

We also recommend you get drivers to sign a declaration including that they have shown you their latest licence, that they will inform you of any changes to their entitlement to drive and reminding them of the medical conditions that they must notify DVLA about. A sample declaration is available to FTA members through the member-only section of the website or the Member Advice Centre.

If you are ever in doubt about the validity of a driving licence you can contact the DVLA Data Subject Inquiry Unit on 01792 310075 to arrange an official check of the licence with the driver’s permission, although please note that the DVLA makes a charge for this service.

If you are an FTA member click here to login and obtain the Member Advice Centre telephone number.