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INSIDER VIEW

13th December 1990
Page 19
Page 19, 13th December 1990 — INSIDER VIEW
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Which of the following most accurately describes the problem?

To stay on the right side of the law operators have to avoid "permiting" driver offences.

• A number of recent court cases have shown that operators need to be seen to be taking steps to prevent drivers' hours and tachograph prosecutions if they are to avoid being accused of causing and permitting such offences.

It has not been easy in the past for the prosecuting authorities to drive the point home, but from recent experience it seems they are beginning to get their act together.

Instructed

To "cause" an offence requires a positive mandate, In other words, the driver has to be instructed to break the law, However, to "permit" an offence is more of a grey area. To succeed, the prosecution has to show the employer had knowledge of the offences being committed by the drivers, and that armed with that knowledge, he "agreed" to the commission of the offences. "Knowledge" can be either actual or imputed, that is the shutting of one's eyes to the obvious or not caring whether offences are committed or not. It is the latter that prosecuting authorities seek to prove in the majority of such court cases.

In the leading case on "permitting", Grays Haulage vs Arnold 1966, Lord Parker said ". . . knowledge is not imputed by mere negligence, but by something more than negligence. . "In Knowles Transport vs Russell 1975, Mr Justice Melford Stevenson said knowledge was imputed. by something that could be described as reckless.

The distinction between "causing" and "permitting" was well illustrated by the case of Redhead Freight vs Shulman, in which the Divisional Court held that a company which shut its eyes to the fact that a driver was not filling in his tachograph charts correctly could not be said to have "caused" the offences but could have been guilty of "permitting" them.

There was no dispute from the evidence that Redhead Freight either knew or, through its transport manager, had deliberately shut its eyes to the fact that one of its drivers was not filling in tachograph charts correctly except on isolated occasions,

However, Lord Justice Woolfe said it was not a situation where the inevitable consequences of sending out that driver was that the tachographs would not be filled out.

Although there was acquiescence in the record keeping which could amount to permission, it fell short of a positive mandate or any other suffident act required for the offence of "causing" as charged.

The practicalities and possible pitfalls for the operator are perhaps best illustrated by looking at three cases that recently came before magistrates.

In the first, Canute Haulage Group (CM 11-17 October) was cleared of permitting a series of drivers' hours offences when it appeared before the Heywood magistrates.

The company had denied permitting a driver to take insufficient daily and weekly rest and to drive for 41/2 hours without taking a 45-minute break.

The prosecution conceded that Canute had gone to great expense to acquire advanced tachograph chart analysis equipment, and that disciplinary action had been taken against drivers when infringements showed up.

However, they argued that there came a time when warnings were no longer enough, and something more was necessary if the company really meant business.

Sacked

The defence argued that there was no evidence that Canute had acquiesced in the offences. Essentially, the prosectition was saying that the driver should have been sacked. They were dealing with a four-month period involving a driver who had been with the company for four years.

In the second case, Macclesfield magistrates dismissed a series of drivers' hours and tachograph allegations which brought against James Nuttall Transport.

The company was charged with permitting a driver to take insufficient daily rest; causing him to make a false tachograph record; failing to ensure a tachograph chart was in use from the moment he took over the vehicle; failing to ensure that the correct time was recorded on the tachograph chart; and two offences of failing to produce tachograph charts.

For Nuttall, it was said that the driver concerned had been given a final warning in January, after an analysis of his charts by the company had revealed a number of infringements in November and missing charts in December.

He was told the company would have no alternative but to dismiss him if there were further breaches of the regulations and he later resigned.

The defence argued that the driver was the only one to

blame. The company became aware of the offences and took steps to discipline him. Drivers were issued with guides to the regulations and every chart was analysed — Nuttall's had done everything it possibly could.

Another case shows the reverse side of the coin. Liberty Trading Co was convicted by Frome magistrates of 11 offences of permitting drivers to exceed the hours limits and take insufficient rest (CM 1.824 October). The prosecution pointed out that offences had been committed over a sixmonth period, though the charges before the court related only to January and February.

An examination of the tachograph charts revealed hours offences by the drivers and about 3,700km (2,300 miles) was unaccounted for.

Warned

For the company it was said that the drivers had been regularly warned about keeping to the hours limits, but had carried on committing offences. Two of the three drivers concerned had since been sacked. It was a small company under pressure to get the work done.

The lessons are clear. Operators need to make sure their drivers are aware of the regulations, they need to check tachograph charts regularly and, when infringements are disclosed, they need to take increasingly severe disciplinary action.

A properly structured disciplinary system, including records of action taken, will not only avoid convictions for causing and permitting offences, but will also avoid employment protection legislation problems.

It is something that all operators need to give attention to. The penalties imposed by the courts can be severe — but just as worrying is the fact that following legal problems customers might cancel contracts. 0 by "Insider"


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