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Our team of legal experts examine your issues
Page 35
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Legal G&A is a service to CMreaders in which specialised road transport lawyers suggest the answers to your legal queries. This week's questions are answered by Barker Gotelee, which is based in Ipswich.
Limited protection
We run a garage servicing CVs and have developed a recovery business with nine vehicles. I am planning to set up a limited company.
Will this have the added benefit of protecting my licence from attracting penalty points if one of my drivers commits a road traffic offence? Rob Morgan Hereford West, Pembrokeshire
While you should always take legal and accountancy advice about the benefits of a limited company there are some real advantages, one of which relates to penalty points. A limited company is a legal "person" in its own right but does not, of course, have a driving licence.
If a company is convicted of endorsable offences in court it cannot have points endorsed even if its driver, who is also summoned, has points endorsed on his or her licence.
If, on the other hand, the business is run as a partnership or sole tradership then a partner or the sole trader will be liable to have points endorsed on his or her personal licence even though they did not drive the vehicle themselves.
The more drivers commit endorsable offences, the greater the risk to the business owner's personal licence (although there is some protection for the partner/sole trader as a court may not endorse points for certain offences if the employer and/or the driver are blameless). Please note that you are not totally protected by operating as a limited company. The director, company secretary or other employee of a limited company can be convicted of
an offence if they fail to provide information they could reasonably obtain. For example, failure to provide driver details is an endorsable offence so you cannot use the limited company status as a way of avoiding responsibilities altogether.
However, for anyone with an 0-licence there are a number of other very powerful reasons for operating as a limited company.
Weekend working
I have signed on with several driving agencies to work weekends. How will I be affected by the Working Time Directive?
During the week I work as a commercial and industrial fence erector, driving a 7.5-tonner and a van. If I drove the 7.5-tonner a total of 40 hours a week does this mean that I can only drive a further eight hours (on average over a 17-week period) under the WTD? David Eckersley Manchester
Before considering the VaD you need to be careful you are not contravening the EU drivers' hours rules by working in away which is disrupting your compulsory weekly rest; this assumes you are engaged in a driving job that is not exempt from tachograph use.
Weekly rest is not simply rest from driving but rest from all work. You need to ensure that your agency work does not put you in breach of the rules. The Working Time rules which come into force in March 2005 mean that working time will be the sum of all the working hours worked for different employers. Therefore your weekend work will have to be added to your weekday work.
Employers must ask employees in writing to account for time worked for any other employers and you will be obliged to provide that information in writing. If you drive any vehicle requiring the use of a tachograph you will be subject to the new rules. You need to be quite clear about the meaning of "working time". As well as driving
time it includes loading, unloading, paperwork and other times when you cannot dispose freely of your time.
It does not include rests, breaks or periods of availability (periods other than breaks or rests when you are not required to remain with your vehicle and you know the likely duration in advance).
You need to assess how much of your '40 hours' driving" during the week is truly "working time" so you can calculate how much working time you have left for weekend working. Remember never work more than 60 hours in any single week and do not exceed a 48-hour average. But, again, even if you are able to work at weekends under the VVTD you still have to comply with the drivers' hours rules.
Late summons
My company and one of our drivers have been summonsed for a weight restriction offence when the vehicle travelled about 400 yards into a restricted area while delivering.
Unfortunately the summonses were not served until two hours after the court hearing, having been sent by normal mail. Should they have been sent by recorded post and how much notice should have been given? Joe Craig Leyton Buzzard, Beds
Very late service of summonses is a common, though unacceptable, feature of prosecutions caused by too few police resources and court delays in processing paperwork.
There is no requirement that magistrates court summonses be sent by recorded mail; they only have to be served in advance of the hearing. However, the later the posting of the summons the more reasonable will be your argument that you had no notice of the hearing.
Get in touch with the court immediately and find out what happened. It is possible that you were found guilty in your absence. If that is the case you need to arrange to go to the court to make a statutory declaration that you knew nothing about the case until it was too late —this is quite a common procedure.
If you were convicted in your absence those convictions will be set aside and, depending on other factors, new summonses may have to be issued.
If you were not convicted and the case was simply adjourned to another date, the court should still give you more time to prepare your case because of the late notice.