Decision

Decision for Felixstowe Driver Recruitment Ltd, OF2034390 & Former Transport Mgr, Michael Smith & Drivers: Craig Fisher, Martin Roberts & Nigel Brown

Published 3 April 2023

0.1 In the Eastern Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Felixstowe Driver Recruitment Ltd (OF2034390) and Michael Edward Smith, Former Transport Manager and Drivers: Craig Thomas Fisher, Martin Gordon Roberts & Nigel Patrick Brown.

2. Background

Felixstowe Driver Recruitment Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 10 vehicles and 10 trailers. The Director is Ian Atkinson. The current Transport Manager listed on this licence is Edna Inga Christine Smith who was appointed from 12 July 2022 to work 24 hours per week. She was previously the Transport Manager for Aggmax Transport Ltd (OF1139760) and had other employment in tachograph analysis. She qualified in 1990 and undertook refresher training in February 2021. The previous Transport Manager, Michael Edward Smith, was appointed from 24 September 2020 and removed on 12 July 2022.

There is one Operating Centre at Port Express Ltd, Fagbury Road, Felixstowe IP11 4HQ. Preventative Maintenance Inspections are said to be carried out by HB Commercial and K Murphy (Kieran Murphy Truck & Trailer Repairs) at 8-weekly intervals.

The operator is a subcontractor for another operator, Port Express Ltd. The drivers are given the work by Port Express and the hours worked by the drivers would be supplied to Felixstowe Driver Recruitment Ltd. This operator then invoices Port Express.

3. Hearing

The conjoined Public Inquiry and Driver Conduct Hearings were listed for today, 1 March 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. was present in the form of Ian Noel Atkinson, Director, accompanied by Edna Smith, Transport Manager. Drivers Craig Thomas Fisher and Martin Gordon Roberts attended but Nigel Patrick Brown failed to appear. I was only alerted on the day of the Public Inquiry to an email from Mr Smith, dated 23 February 2023. He alerts me to health issues, that he would not be attending the hearing, but he invites me to make an adverse finding against him as he no longer wishes to continue in the industry.

4. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – conditions on licence to notify changes, in this case relating to maintenance and the exercise of effective and continuous management

• 26(1)(c)(iii) – prohibitions (pages 213 to 217)

• 26(1)(e) – statements relating to inspection intervals, who was responsible for continuous and effective management, and to abide by conditions on the licence

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours, and tachographs)

• 26(1)(h) – material change

• 27(1)(a) – repute and financial standing

• 28 – disqualification

Michael Smith was called separately to consider his repute as Transport Manager, by reference to the statutory duty to exercise effective and continuous management – section 27(1)(b), Schedule 3 and section 58, and to consider whether I should make a direction in respect of his Certificate of Professional Competence.

Drivers Craig Fisher, Nigel Brown and Martin Roberts were called for me to consider their conduct as vocational drivers and whether to make a direction in respect of the future enjoyment of those driving entitlements.

The operator was directed to lodge evidence in support by 15 February 2023, including financial, maintenance and other compliance documentation. The operator failed to provide original or verified financial evidence, as per the Directions. The copies produced bill payments to Reynolds, D Smith, Aurel Tudor Ltd, ApB Transport Ltd (Driver Borowski’s company), Incze, Hatfield Trans Ltd (Driver Orgel’s company), Legal Trans Ltd (Driver Kozaria’s company), Mosley, Calrowmad Ltd (Kieran Murphy’s company), with invoices being paid into the final month of December 2022. I could see that payments were now being made to the nominated Transport Manager and the evidence produced provided basis for a Period of Grace.

5. Summary of Evidence

Vehicle AY66 TFF was stopped by a DVSA traffic examiner on 16 December 2021. It was not displaying a Goods Operator Licence disc and was only then specified that day. It was not established who added the vehicle. The Driver was Nigel Patrick Brown. The driver confirmed that he was working for Felixstowe Driver Recruitment Ltd but received instructions from Port Express Ltd and that he paid his own tax and national insurance. A download of the vehicle unit found several drivers hours breaches.

I refer to the transcripts of interviews at pages 54 to 200 of my bundle. Driver Brown was interviewed under caution on 4 March 2022. He was asked to explain six occasions between 12 October 2021 and 8 December 2021, when he appeared to have removed his driver card but continued to drive. Mr Brown suggested that he had produced a printout on each occasion, but that no-one from the operator had ever spoken to him regarding the apparent offences. He left the operator in February 2021. He failed to attend, so I was unable to understand the context in which these infringements were committed.

The same vehicle was stopped again on 5 January 2022, when driven by Driver Martin Gordon Roberts. He also confirmed that he paid his own tax. Again, a download of the vehicle unit revealed a number of drivers’ hours breaches. Driver Roberts was interviewed under caution on 24 February 2022 regarding 13 occasions between 27 September 2021 and 18 November 2021 when he appeared to have removed his driver card but continued to drive. He suggested that he was trying to park and had not realised he had removed his card on so many occasions. He said he had not been spoken to by the operator regarding the offences and was unaware who the transport manager was. Mr Roberts came to be engaged by word of mouth. There was no real interview and he spoke with the Director over the telephone. He only signed a contract for services after the DVSA intervention He sent over just a photocopy of his DQC and driver licence card. There was no on-line check, He had no contact with the previous Transport Manager. Both drivers were told to leave their driver cards in the vehicle for analysis over the weekend and received no feedback. There was no induction or check of their competence. Driver Roberts had completed 3 or 4 CPC modules in 1 week before renewal on 11 September 2019.

Driver Craig Thomas Fisher was also interviewed under caution, on 23 March 2022 when he was given opportunity to explain two occasions, 12 and 26 October 2021, when he appeared to have removed his driver card but continued to drive. He confirmed removing the card, as he was running out of driver’s hours. He claimed that he had never been spoken to by the operator regarding the offences. The first occasion was when he was asked to move on from Newmarket Services to allow a taker delivery. He then found successive laybys on the A14 to be shut. He had left the Army in 2004 but returned to the industry, joining this operator in October 2021 after an intensive week of Driver CPC modules prior to 24 September 2021. He was engaged through Driver Roberts and met the Director in a pub when he supplied copies of his DQC and driver licence card. There was no other check. There was no real induction as Mr Roberts explained the operation. He had no contact with the then Transport Manager.

The then Transport Manager, Michael Smith, was interviewed himself on 4 March 2022. He indicated that he was not employed by the operator and that he received no payment for carrying out that role. He described it as helping out a friend, but confirmed that he had been responsible for the downloading of the drivers’ hours data and for addressing infringements with drivers. However, he was unaware of any of the offences identified by the Examiner. He was asked about the apparent delays in locking in vehicles:

• HT63 ABX specified on 24 September 2020 but locked in on 10 September 2021

• NK16 XRO specified on 24 September 2020 but locked in on 7 August 2021

• AV65 WVN specified on 24 September 2020 but locked in on 16 January 2021

• AV65 WVR specified on 24 September 2020 but locked in on 16 January 2021

• AV65 WVP specified on 24 September 2020 but locked in on 9 January 2021

Mr Smith could not provide an explanation. Mr Smith claimed that this was due to ignorance.

The operator was interviewed on 16 June 2022, represented by the Director, Mr Atkinson, accompanied by his solicitor, Mrs Bell. He confirmed that no payments had been made to Mr Smith for his transport manager. He exercised no oversight of Mr Smith, but simply expected him to carry out the Transport Manager duties. He was therefore unaware that drivers had driving off card.

The operator was the subject of a DVSA Traffic Examiner visit on 8 July 2022 (pages 201 to 212). The Examiner noted improvement to systems since the vehicle stop in December 2021 and confirmed that Vehicle Units and Driver cards were being downloaded within the required deadlines. The data is then sent to Transport Consultancy Services for analysis. However, the Examiner identified weaknesses in the new Transport Manager’s approach to the checking for false records and missing mileage. Working Time records also need to include holidays. The Examiner recorded that disciplinary procedures have now been put in place since the December stop. Immediately before the hearing I saw driver card download printouts for Drivers Atkinson, Kozaria, Mosley, Orgel, Reynolds and Borowski. A Driver, Aurel-Florin Tudor, was also referred to. Drivers Tudor, Orgel and Reynolds were variously described as “not working at FDR” or away. I saw Vehicle Unit downloads printouts for the same period of November 2022 to January 2023, with a suggestion that vehicles AY66 TFF, KM19 XOG, NX16 XRO, AV65 WVP, AY65 RRZ, and PO58 TYS were off-road for periods in December 2022 and January 2023. The Working Time Directive Infringement Table merely identifies the number of infringements and the driver, for that period, as does the “EU Infringement Table”. The Optac3 system has been used to generate missing Vehicle Unit downloads apparently related to Drivers Kozaria, Mosley, and Orgel. I noted signed Compliance Reports:

• Driver Orgel dated 1 February 2023, confirming he exceeded the maximum 10 Hours driving limit and that he took insufficient breaks on 24 January 2023. The endorsement referred to issues with parking at Bury St Edmunds truck stop.

• Driver Orgel dated 26 January 2023, confirming a WTD infringement and that he needs to obtain a UK DCPC and that he apparently drove over the 4.5 hour driving limit.

• Driver Orgel dated 16 December 2022, confirming that he failed to download his driver card before a period of leave and to use the correct mode switch.

• Driver Orgel dated 22 November/6 December 2022, confirming shortened rest of 8 hours 44 minutes. The endorsement refers to parking in a safe place with a load.

• Driver Mosley dated 7 February 2023, confirming a WETD infringement after working 7 hours and 50 minutes and exceeding the 4.5 hours driving limit. He was then instructed to make a manual entry. The Transport Manager notes that he will receive a written warning. The accompanying warning of 30 January 2023 suggests that Driver Mosley is an occasional driver.

• Driver Mosley dated 7 February 2023, confirming a WTD offence of working more than 11 hours and daily rest of only 8 hours and 18 minutes. He was apparently driving for someone else.

• Driver Tudor dated 20 and 5 December 2022, confirming a WTD offence of exceeding the maximum 10 hours by 14 hours, with no daily rest, driving 5 hours and 27 minutes with no break, a further offence of exceeding the daily limit and insufficient weekly rest. The Transport Manager’s endorsement refers to incorrect use of mode switch and to leaving his card in the tachograph, leading to a total of 7 infringements, but the manual entry refers to a “fault”.

• Driver Borowski dated 22 and 29 November 2022 confirming a WTD offence of exceeding 12-hour working by 2 hours. The accompanying warning is dated 22 November 2022.

I also noted the initial annual test failure rate of 28.57%. The operator was only requested to produce up to date maintenance documentation. By way of example:

5.1 AY66 TFF

• 24 January 2023 – inspection with brake test, but: 42%, 18%, 25% with insufficient load on axle 2. It also records a defective tyre and oil leak, but no report.

• 24 November 2022 – inspection with no brake check.

5.2 AY65 RSO

• 12 January 2023 – inspection with no brake check. It also records a tyre worn on outer shoulder but Nil driver defect report.

• 10 November 2022 – inspection with brake check, but: 48%, 19%, 20% with imbalances of 23 and 24% on axle 3.

The photograph of the wall planner was difficult to decipher. There appeared to be tyre check logs for Commercial Contract Tyres for 17 July, 21 August, 25 September, 29 October 2022, and 5 February 2023 only. Records suggest that the contractor may be relying on road tests of brakes, for instance as late as 12 January 2023, AY65 RSO. The records included the operator licence discs issued for PO58 TYS, AV65 WVP, and AY65 RRZ with an off-road record and a suggestion that there is no work for those vehicles. AY65 RRZ is to be sold.

No trailer records were produced. Mr Atkinson had started to invest in 10 new trailers, but the cost had arisen. The operator is currently hauling trailers, which belong to its customer. That fact is not reflected in the deriver defect reports, with no indication of trailer inspections, brake tests or annual tests. The number of reports made available was not indicative of pick and drop operations. The DVSA Guide to Maintaining Roadworthiness assists operators by making practical suggestions for managing traction-only operations. Transport managers are required by law to manage the transport operation continuously and effectively. An operator providing traction-only services must have trailer authority on that licence and must specify an inspection period. The operator therefore needs to satisfy itself that the trailer provider’s inspection regime is appropriate. The operator must ensure that any trailer it operates meets the stated frequency for inspection. If the operator cannot satisfy themselves that a suitable assessment has taken place, then the operator must make their own assessment, as per the declared intervals.  An operator should therefore expect access to information which indicates the annual test expiry, the date of the last Preventative Maintenance Inspection, for trailers not fitted with electronic brake performance monitoring, date of last roller brake test and confirm that this was laden, contact details for reporting of defects. Mr Fisher confirmed that the Port Express Ltd trailers display stickers with inspection and test dates. It was made very clear to the Director and Transport Manager that they need to have arrangements in place to meet the requirements of this licence. Once again, the lack of control and management of drivers was evident.

I was told that Mr Smith had been introduced by a friend. Mr Atkinson was apparently awed by Mr Smith’s previous experience in the Army. Apparently, Mr Smith had referenced managing contracts worth £30 million. That was not evident here. This was an amateurish operation and there was no financial or other reason for him to ensure that the statutory duty was met. Mrs Smith confirmed that systems were far from that required to ensure a compliant operation.

6. Determination

Based on the evidence above, I was satisfied that I should record adverse decisions under the following sections: 26(1)(b) – breach of the conditions on licence to notify changes, in this case relating to maintenance and the exercise of effective and continuous management, 26(1)(c)(iii) – prohibitions, 26(1)(e) – statements relating to who was responsible for continuous and effective management, and to abide by conditions on the licence, 26(1)(f) – undertakings for vehicles and trailers to be kept fit and serviceable, to employ effective driver defect reporting, to ensure and retain complete maintenance records, to comply with drivers’ hours and tachograph requirements. The failures in management and to produce financial evidence necessitated a finding under section 26(1)(h), as material changes.

The Transport Manager at the time, was not demonstrating continuous and effective control over the period in which the roadside encounters occurred. Mr Smith decided to absent himself from the proceedings, so I was denied the opportunity to question him. The drivers were aware that they had removed the digital tachograph cards from the vehicles whilst continuing to drive. They appeared to have sufficient knowledge of the rules around drivers’ hours to be aware that their conduct was non-compliant, but there was a lack of training or instruction. The operator and Transport Manager would have been expected to manage recurring issues with planning when finding somewhere to park. The data was not being checked by Mr Smith, and consequently no driver was disciplined or supported. The interviews suggest that drivers did not even know who the Transport Manager was.

6.1 Former Transport Manager

The Upper Tribunal explained back in 2015/040 Tacsi Gwynedd Ltd that there is no genuine link if the Transport Manager acts as a volunteer or some casual arrangement. Paragraph 58 of Statutory Document No. 3 on Transport Managers explains: One of the purposes of the legislation is to avoid a situation where the transport manager acts in name only and does not have continuous and effective management of the transport operation. Mr Smith had no contract and received no reward. He qualified in December 1989 with no refresher training until 2022. He apparently assisted in the completion of the licence application, without an obvious understanding of what was required of him. There was no oversight of his work, and no recognition of his failings. Based on that I am satisfied that I must record an adverse finding against his repute under section 27(1)(b). He indicated that he wishes to retire so I can disqualify him from relying on his Certificate of Professional Competence without setting a rehabilitation action or period. If he changes that approach, he can apply to vary that direction under Schedule 3, which would have to be referred to a traffic commissioner.

6.2 Operator

The Director was content to abdicate all responsibility without any oversight and the operator gained that commercial advantage. Persons who control an entity which operates heavy goods or public service vehicles must have sufficient knowledge to exercise proper oversight. An operator must supervise and monitor the actions of a Transport Manager by, for example, checking the maintenance inspections, the annual test pass rate, the number of prohibitions issued, the DVSA Operator Compliance Risk Score, the arrangements for securing compliance with the drivers’ hours’ rules and tachograph regulations etc. However, the Traffic Examiner has noted a different approach during the recent visit. However, as my summary indicates, there are a number of areas where concerns remain. I noted the changes implemented by Mrs Smith, but she was clear that the lack of employed drivers had made controlling them very difficult. Disciplinary action has been reduced to the issue of letters. She expressed concern at the lack of understanding displayed by some drivers, but instability in the business meant over-reliance on this type of ad hoc arrangement.

Mr Atkinson admitted that it had been difficult to offer the right level of wage within the margins of his current contract. Mr Fisher was moved to a PAYE contract before he left but current drivers are not employed. On the advice of his accountant, the operator had moved to paying service companies and self-employed drivers. In 2019/54 Bridgestep Ltd & Tom Bridge, the Upper Tribunal referred to the practice of drivers classify themselves as self-employed. The Tribunal commented that the legitimacy or otherwise of a driver’s self-employment status is fact specific and as the Factsheet produced by the RHA on self-employment contained within the bundle makes clear: “Unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. There was nothing before the Tribunal to confirm that the arrangement between the company and its drivers was compliant with the HMRC guidelines. The Upper Tribunal referred to a conscious decision to enter into an arrangement with the company’s drivers which was highly questionable if not a sham. The reasons for doing so were anti-competitive being as they were, concerned solely with the cost of employing the drivers and by reducing that cost, gaining a competitive advantage over other compliant operators. The Tribunal went on to describe the vast majority of operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday and sickness entitlement. The consequence in that case was that the company and Transport Manager felt unable to give any instruction to drivers whether it be in relation to route planning or otherwise and consequently, were unable to have continuous and effective management of the transport operation. I cannot help but reflect on the frustrations expressed by Mrs Smith, but Mr Atkinson continued to doubt that he would be able to operate with employed drivers. I have had to impress upon him that he has gained a potential advantage during a period when every operator has felt the impact of the driver shortage.

I took account of the move to compliance since the Traffic Examiner commenced his investigation. This was the operator’s first Public Inquiry but the operator has been slow to act despite the intervention commencing in 2021. The Director appeared unaware of some compliance issues and unable to address others. I was repeatedly told that the contractor or the drivers had been asked to ensure compliance, but the records show that operator licence requirements were still not met. Mrs Smith is aware that she places her professional position at peril if that position does not change. I am able to take account of the impact which Covid had on the business model. There are currently 6 vehicles declared off-road, although that may change imminently. There is the prospect of additional or alternative work, perhaps starting in 4 to 6 weeks. That may require a move of Operating Centre but there is no contract in place and no application has been lodged to date. I took account of the following undertaking, which I have attached to the licence:

• the operator will arrange an independent audit to be carried out by the RHA, Logistics UK or other suitable independent body, to assess the systems for complying and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements in the annex to be supplied by the Office of the Traffic Commissioner. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the Office of the Traffic Commissioner in Cambridge within 4 months of the date of the hearing.

I granted a Period of Grace of 4 months to demonstrate financial standing. The operator was fully advised that evidence must be in original form or a verified copy, as per the Senior Traffic Commissioner’s Statutory Document No. 2. The subsequent finance review will allow opportunity to confirm that drivers are now properly employed.

Following my findings, the operator’s repute is severely tarnished. I determined that deterrent action is required to ensure that the operator secures the improvements required in order to comply with basic licence requirements. As the Upper Tribunal commented in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. Mr Atkinson should be in no doubt that the licence will be at risk if he again delays to act. The operator’s licence was curtailed to 7 vehicles and 7 trailers from 23:45 tonight.

6.3 Drivers

The relevant legislation is set out in Sections 110-122 of The Road Traffic Act 1988. The legislation draws a clear distinction between Large Goods Vehicle (LGV) licence holders and applicants and Passenger Carrying Vehicle (PCV) licence holders and applicants.

Section 112 of the 1988 Act provides that the Secretary of State shall not grant to an applicant a LGV driver’s licence or a PCV driver’s licence unless he is satisfied, having regard to his conduct, that he is a fit person to hold the licence applied for. It is section 121(1) which defines conduct in relation to an applicant for or the holder of a LGV driver’s licence or the holder of a UK licence for the Community, his conduct as a driver of a motor vehicle.

The Administrative Court, on the application of Meredith and Others EWHC 2975 (Admin) 18, explained that, whilst the personal circumstances of the driver are, at the preliminary stage of consideration of fitness, irrelevant to the question whether his conduct as a driver has been such as to make him unfit, save to the extent that those circumstances concern his conduct as a driver. Personal circumstances which go to mitigate the conduct itself (such as illness, or emergency, or momentary lapse of attention, or carelessness) will be relevant, while personal circumstances which would, in the ordinary sentencing exercise by a criminal court go to mitigation of penalty (such as loss of work, or other hardship, or the dependence of others upon the licence-holder) would not.

Driver Roberts now works for Logistics Planning Services Ltd and has been employed since July 2022. He would receive driver module training after 12 months of employment. He feels clued up on the requirements now. He has only been alerted to 1 infringement when he reduced rest by 1 minute. Driver Fisher now works for the operator’s customer, Port Express Ltd. He described that as a proper operation where driver cards are downloaded every week and infringements are raised shortly afterwards. He has only attracted 2 incidents of concern: one arising from a shortened 15-minute rest and the other connected 6-hour WTD infringement. He described learning from the Traffic Examiner and in particular to take two printouts when an endorsement is required, so that he can retain a copy himself.

In departing from the suggested starting points in the Statutory Document, I took account of the shambolic approach to driver management, described above. They were reminded that, as professional drivers, they are expected to demonstrate that approach and to meet the standards. Both drivers described personal responsibilities which mean that they are committed to compliant driving in the future. Mr Fisher had been offered the opportunity of in-house refresher training by the Fleet Manager, but there had been no progress towards the Driver CPC requirements. I therefore allowed them 7 days to provide evidence of having booked that training. Mr Brown will be given 14 days to explain why I should not suspend his vocational entitlement, pending attendance at a Driver Conduct Hearing.

R Turfitt

Traffic Commissioner

1 March 2023