By signing an undertaking the operator promises to (for example):
- Observe laws relating to driving and operation of vehicles
- Observe drivers’ hours rules and to keep proper records
- Ensure vehicles and trailers are not overloaded
- Ensure vehicles operate within speed limits
- Ensure that motor vehicles and trailers (including those hired) are kept fit and serviceable
- Report promptly any defects or symptoms or defects that could prevent the safe operation of vehicles/trailers.
But who checks?
Traffic Commissioners are responsible for the licensing and regulation of those who operate heavy goods vehicles, buses and coaches as well as the registration of local bus services, they are able to take regulatory action against operator licences. As well as granting licences they have the power to revoke or suspend a licence if they feel it is appropriate.
If a company is called to public inquiry the Traffic Commissioner will consider their fitness to hold a licence - this includes the fitness of the directors of that company.
What is fitness?
Fitness is an essential element of an operator’s repute meaning the ability to meet the requirements on the operator’s licence. The Upper Tribunal, the appeal court for transport cases, said in one case "… it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means that they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular (emphasis added)”.
Does it affect directors that much?
Yes. Traffic Commissioners can disqualify directors from holding an operator licence in the future if a Traffic Commissioner makes a finding that the undertakings you gave have not been met.
All directors are responsible for transport in the business even if your title suggests that you are not and your fitness (repute) is relevant to whether the licence can be held.
The content of this article is from the summer 2019 edition of Deliver and is for general information only. For further information please contact Philippa Dyer or a member of Birketts' Regulatory and Corporate Defence team. Law covered as at July 2019.