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Protect against permitting

6th October 1994, Page 45
6th October 1994
Page 45
Page 45, 6th October 1994 — Protect against permitting
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Which of the following most accurately describes the problem?

perators would have been horrified to have seen reports of very large fines being imposed on operators for breaches of the Driver's Hours Regulations. Many operators believe that the law has changed or the attitudes of the courts have changed so that offences against operators under Driver's Hours Regulations ore absolute. The law has not changed: the only change in the attitude of the courts has been to increase penalties on those defendants who are found guilty.

An operator can only be charged with causing or permitting a driver to fail to comply with the relevant EU or domestic regulations. The more usual charge is one of permitting because this is easier for the prosecution to prove.

To prove permitting against an employer the prosecution has to prove that the employer had some knowledge of the unlawfulness of the driver's conduct. it is not enough to prove that the driver drove over the hours—the prosecution must prove that the company knew about it.

That knowledge, however, can be actual or it can be what the law calls "implied". If an operator has no system for checking drivers' hours, gives no instructions to drivers, and doesn't care how the work is allocated, then he will be deemed by the law to have permitted a driver's hours offence. Judges have put it in the following manner : "A person will be guilty of permitting if he wilfully closes his eyes to the obvious possibility of an offence being committed, or allows a vehicle to go on the road recklessly, not caring whether offences are committed or not."

Something more than negligence has to be shown and that knowledge has to be more the knowledge of the actual employer and not one of his clerks.

The law does not require an employer to check every tachograph chart. The relevant EU Regulation has three requirements • The haulier should organise drivers' work in a way that the drivers are able to comply with the relevant Driver's Hours provisions.

• The undertaking should make periodic checks to ensure that the provisions of the regulations are complied with.

• If breaches are found to have occurred the undertaking should take appropriate steps to prevent their repetition.

All operators need some recorded system for ensuring that the three provisions are complied with. The operator does not have to check every chart; he merely has to check a sufficiently representative selection to enable him to have an informed view.

If the operator takes those steps and brings offences to the attention of the driver, both verbally and in writing, he should never be convicted or indeed charged with permitting.

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Organisations: European Union

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