Decision

Decision for Quick Road Transport Ltd

Published 30 January 2024

IN THE WESTERN TRAFFIC AREA

1. QUICK ROAD TRANSPORT LTD

1.1 OH2014244

1.2 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

2. TRAFFIC COMMISSIONER’S DECISION ON 15 DECEMBER 2023

3. Reasons

A DVSA investigation found that all bar one of the company’s drivers was employed through a limited company, also known as “LTD drivers”. Mr Brdek, director and transport manager, has attended today unrepresented. No documentation has been provided in advance but Mr Brdek has been in tough to explain that he intends the operation to cease.

The law is as follows. Section 2(1) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”) provides that:

• “Subject to subsection (2) and section 4, no person shall use a goods vehicle on a road for the carriage of goods-

• for hire or reward, or

• for or in connection with any trade or business carried on by him, except under a licence issued under this Act: and in this Act such a licence is referred to as an ‘operator’s licence’.”

Subsection (2) refers to specific exemptions such as use as a recovery vehicle, cabotage, agricultural use and so on. It is not relevant here. Section 4 allows a traffic commissioner to grant an exemption in emergency situations. It was last used during Covid when there was an urgent need to use vehicles for the building of temporary morgues. I use that example to show that emergency refers to a societal or national need, not a business one.

The person who is considered to “use” a vehicle is defined at Section 58(2) of the 1995 Act:

• (2)  For the purposes of this Act, the driver of a vehicle, if it belongs to him or is in his possession under an agreement for hire, hire-purchase or loan, and in any other case the person whose servant or agent the driver is, shall be deemed to be the person using the vehicle; and references to using a vehicle shall be construed accordingly.

In the case of a “LTD driver”, the driver is the servant of their own limited company. It is their limited company that pays them and gives them their directions. That may seem artificial in the case of a limited company whose only employee is the director who is the driver but that is the law.

The arrangement with Quick Road Transport Ltd was that it was contracted to work for a customer such as Amazon or any other. It then sub-contracted that work to a number of limited companies. Those limited companies then employed the driver. For example, work was sub-contracted to TB Transport Ltd. TB Transport Ltd employed Tomasz Bednarczyk to carry out that work on behalf of TB Transport Ltd. The driver was Mr Bednarczyk, and he was the servant of TB Transport Ltd which was an illegal operator.

It is worth pointing out at this point that Section 2A of the 1995 Act gives DVSA the power to “detain”, more commonly known as “impound”, a vehicle in the circumstances where Section 2 appears to be breached. All of the vehicles driven by the LTD drivers fall within scope of being impounded. In practice. DVSA would not do that on the first encounter as there is a defence that the user did not know they were operating illegally. That is a more complicated test than it first appears. Users are expected to have made reasonable attempts to find out whether what they are doing is illegal, and DVSA’s pre-impounding warning letters seek to ensure that such a defence is generally unsuccessful.

There are two other matters I must deal with. Mr Brdek told me that he moved to the UK seventeen years ago. He became founder-director of this company twenty years ago. He took his transport manager CPC in Poland in 2018. The relevant law at the time was EU Regulation 1071/2009. As can be gleaned from its title, the Regulation was made in 2009. It took effect from 2011. At Article 8(2), it says:

• The persons concerned shall sit the examination in the Member State in which they have their normal residence or the Member State in which they work.

That has now been adopted into UK law. It is fair to say that licensing staff were not routinely checking this point until the past few years. More rigorous checks might appear to coincide with UK leaving the European Union but were in fact triggered by the concerns of traffic commissioners that many transport managers who studied in other member states were completely unaware of UK requirements such as for regular safety inspections or the conditions relating to operating centres. Mr Brdek’s certificate of professional competence is not valid in the UK and would not be accepted in the future. I make no adverse finding about his conduct here as he has been transparent throughout.

The final matter is financial standing which it is accepted is not met.

It is fair that I record the findings of the DVSA investigation that there were no matters of concern in relation to compliance with drivers hours, tachographs or driver licensing. Maintenance was not checked.

3.1 Kevin Rooney

Traffic Commissioner

15 December 2023