Decision

Decision for Pro Drainage Ltd

Published 11 September 2024

0.1 WESTERN TRAFFIC AREA

1. PRO DRAINAGE LTD: OH2031101

2. TRANSPORT MANAGERS:

2.1 Richard Gibbons

2.2 Benedict Oxley

3. AT A PUBLIC INQUIRY IN BRISTOL

3.1 31 JULY 2024

4. BACKGROUND

Pro Drainage Limited is the holder of a standard national goods vehicle operator’s licence authorising the use of sixteen vehicles and two trailers from a site at Blue Roof Farm, Throop Rood, Bournemouth. Fifteen vehicles are shown as in possession. The directors are Mark Grundy and Kelly Grundy. The licence was granted in April 2020. Transport manager from grant to 24 May 2024 was listed as Richard Gibbons. Benedict Oxley is listed as being transport manager from 11 January 2023 until 5 June 2024. Erica Williams was appointed as a transport manager on 24 May 2024.

DVSA Vehicle Examiner Timothy Collins conducted a maintenance investigation on 17 April 2024. He found shortcomings in the following areas:

• inspection and maintenance records
• driver defect reporting
• inspection facilities and maintenance arrangements
• vehicle emissions
• wheel and tyre management
• load security
• transport management

DVSA Traffic Examiner Allen Cox carried out an investigation into traffic management matters also on 17 April 2024. He found shortcomings in:

• driver licensing and training
• drivers hours and record keeping
• compliance with the working time directive

TE Cox was particularly concerned with evidence that showed drivers on duty for periods of up to eighteen hours and working up to nineteen consecutive days. Drivers were only getting six hours rest between consecutive shifts. TE Cox provided advice in relation to driver welfare. I listed the case for public inquiry.

On 14 July, I received a report from police constable 2281 Strothard of Dorset Police. PC Strothard recorded an encounter with one of the operator’s vehicles on 23 April, driven by a Richard Embling. Mr Embling said he was working on domestic hours and recording time in a log book. A tachograph download of the vehicle unit showed significant duty times for the week preceding the check with 41.5 hours driving between Monday and Friday. Duty periods ranged from 13 to 17.5 hours.

PC Strothard encountered another of the operator’s vehicles on 28 May 2024, this time being driven by a Kieran Harwood. He noted the driver had recorded duty times between 11 and 13 hours. PC Strothard encountered a third vehicle on 6 June which was being driven by Mr Embling. He noted that, between 13 May and 5 June, Mr Embling had 11 duty days in excess of 11 hours. In the worst case, he had a break of only 5 hours 45 minutes between shifts driving a 32-tonne truck. Mr Embling was given words of advice about recording the true nature of the “emergency” he claimed to be dealing with.

5. THE PUBLIC INQUIRY

Mark Grundy and Kelly Grundy attended for the operator with Erica Williams, represented by Damian Hayes, solicitor. Also present in person was Benedict Oxley. Richard Gibbons attended via Microsoft Teams video link which functioned properly. Traffic Examiner Allen Cox attended for DVSA.

The proceedings were recorded and a transcript can be made available on request. I record here only the key points necessary to make a decision.

TE Cox had helpfully produced a pre-public inquiry update on traffic matters which was in my electronic bundle on Case Center.

In opening, I noted that the operator appeared to be lending licence authority to what were termed as “sub-contractors”, which were limited companies employing drivers, such as RC Embling Transport Ltd. This had arisen from my review of the compliance documents provided ahead of the hearing.

6. The evidence of Traffic Examiner Allen Cox

TE Cox adopted his report and told me that, on his visit, he had met Noel Streamer, Mark Grundy and Ben Oxley. He had been concerned about the 18-hour days and had advised that drivers needed to be given adequate rest and to comply with the domestic hours rules which would be 10 hours working. The emergency was to suck up waste from burst drains. Mr Cox considered an emergency as an unplanned event which did not always seem to be the case here.

Having reviewed the recent documentation, the situation had continued with drivers working 18-hour days. The company was still not using tachographs. They had arranged with TruScan and one vehicle was calibrated but no evidence of use. He had advised the company to use tachographs in April.

Mr Hayes had no questions for the Examiner.

7. The evidence of Richard Gibbons

Mr Gibbons told me that he was Mark Grundy’s uncle and had built the business with Kelly and Mark. Mr Gibbons had thirty-five years of experience in the industry; Mark and Kelly had none. The business was completely different to normal road haulage. When they started, they were o-licence exempt until they started working for hire or reward. Mr Gibbons had then made the application and was transport manager. He had been named as the transport manager until two weeks ago but hadn’t been involved in the running of the business for over two years and had nothing to do with the operation. He had fallen out with the Grundys over the o-licence. He had stayed on the licence while an employee was being put through the CPC course but that had not been successful. He still went down to the yard and kept in contact with the garage where the maintenance was done to keep in touch. He had asked to be taken off the licence and that had recently happened.

He did not know how it had all got this far. No-one had tried to speak to him. When the licence was granted, he had tried to contact people in DVSA but no-one knew what rules applied. He told me that exempt and exemption mean exactly that. He had wanted to use tachographs to monitor the hours but was told that you couldn’t do that – if you use a tachograph then the EU rules apply. In the emergency situation, you were on call. If a pipe burst when you were there and sewage was running in to people’s houses the driver couldn’t just say “I’ve worked 9 hours now and have to have a break”. Mark and Kelly hadn’t told him what was going on. He had spoken to drivers who didn’t know who Ben was so he didn’t know what he did. He accepted he had done wrong by staying on the licence but Mark and Kelly had said they would pay him a retainer for the use of his qualification and he needed the money.

I asked about compliance with the domestic hours rules. Mr Gibbons saw it on the website that sewage was exempt. Exempt meant exempt. They were specialist vehicles that could not do any other work. He didn’t mean to teach me how to suck eggs but the vehicles were exempt and they came back from MOT to say that they were exempt. If he had been able to speak to the Examiner earlier, he could have explained the situation to him and we wouldn’t be here now.

I reminded Mr Gibbons that he had told me, and it was the case, that the licence had been applied for in 2020. I asked what operator licence exemption they had relied upon prior to that date. They had only had one 7.5 tonne vehicle. It did domestic work and sometimes emptied a septic tank; he had been the driver. The waste became theirs before they left the site so they didn’t need an operator’s licence. He had rung up and checked.

8. The evidence of Benjamin Oxley

Mr Oxley had taken his transport manager qualification in 2021. He had driven trucks all his life and was currently doing crane work. He joined the operator in November 2022. He had known the transport coordinator Noel. He left about 6 – 8 weeks ago. They needed someone full-time. He had been external. He would go down weekly, not every week. They were trying to make a filing system. The PMI records were attached to emails but hadn’t been printed off and filed. He was also transport manager for Wood Haul. He attended there every week.

He had asked about drivers hours when he started. He was told that Richard had spoken to the traffic commissioner but that clearly wasn’t the case. I asked what exemption allowed a driver to be on duty for 18 hours – it was emergency work so they were exempt. It wasn’t like any other business. He didn’t know how the business satisfied its obligations under the Health & Safety at Work Act.

I asked about a comment in the MIVR that there was a separate maintenance provider for a vehicle based on the Isle of Wight. Mr Oxley could not tell me how long the vehicle had been based there. They did not have an operating centre on the Isle of Wight. Noel organised it.

In response to a question from Mr Hayes, there had been no handover. Richard had not been very accommodating. He had continued with the systems and processes Richard had left and assumed it was acceptable. On drivers hours, they were exempt. He had taken no steps of his own to verify the situation. I put it to Mr Oxley that he had not fulfilled the role of transport manager at all and the true person in control of the operation was Noel Streamer. Mr Oxley told me that Mr Streamer worked under his direction.

9. The evidence of Erica Williams

Ms Williams told me that she had been a transport administrator until 2007 when she took her CPC. She then worked for Hanson on aggregates and saw Kelly and Mark’s advert and joined on 20 May, the application being approved on 24 May. She had been told about the DVSA “walk-in” at interview but hadn’t appreciated how serious the position was. She had focussed on the maintenance side initially.

She had been told by Noel Streamer that cards were downloaded weekly. When she checked, she found only one card that had been downloaded last in February. She was concerned at the hours being driven but had just been told that it was emergency work. She had got agreement to install the Trutac system. All tachographs were being calibrated. In the few weeks that she had been there, she had put in place the foundations. It was now up to Pro Drainage

I recorded that my assessment of the maintenance records was that they were now in very good order. I asked why the disciplinary letter was addressed to NAN Driving Services Ltd and why it referred to the driver as a sub-contractor. Ms Williams had nothing to do with how the drivers had been engaged but had advised Kelly that the drivers appeared to be being treated as if employed. I asked why she was leaving so soon. She told me that she did not trust Noel, the operation manager who didn’t realise the seriousness of matters.

10. The evidence of Mark Grundy

The business was founded about eleven years ago. Originally it was just a drain unblocking company with him and another engineer, Russell. They had two vans. The tanker section started in 2017 with a 7.5 tonne truck. He also worked hands on operationally and was out on the road daily until he had paperwork to do when he would have an office day. Work was within 100 – 150 radius of Ferndown. They now operated twelve vans and fourteen trucks, a massive expansion and employed 35 to 40 people.

Mr Grundy had no experience of trucks prior to passing his driving test last year. Mr Gibbons had driven the 7.5 tonne truck. He had 35 years experience. He had sought and gained approval to be transport manager. Mr Grundy had been naïve to allow Mr Gibbons to guide him.

Noel Streamer used to be a driver. He was now operations manager. He knew the business inside out. They had been putting him through his training as transport manager. That was why Richard stayed on the licence. Ben was an external. Noel didn’t pass his exam so they carried on. They had now decided to employ experienced transport managers.

Mr Grundy had focussed on the drainage side of the business and hadn’t really done enough on the trucks. He would authorise expensive work. They were not expecting the DVSA visit. They weren’t aware that the transport was failing. He thanked DVSA for their attendance.

The main contractor worked eighteen hour shifts with a six-hour break. The drivers weren’t recording other breaks. It was completely out of order and an embarrassment. They had new logbook sheets made to make room for other breaks. Drivers might have put down the hours they wanted to be paid. He wasn’t sure that the records were accurate. It was accepted that no steps had been taken to change things to date but they planned to bring it back in to domestic hours. It was still emergency work. Noel and Erica had had conversations with DVSA and understood that drivers could do a print-out. The emergencies were burst rising mains, polluting of sea or rivers. Work comes through a sub-contracting business for Southern Water. It comes as an emergency job so they have to get there within 2 hours, or a maximum of 4 hours within a 100-mile radius.

Mr Hayes asked about the driver working 19 days on the trot. It was unacceptable. They had failed as a company and could only but apologise. He had no understanding of the hours rules at the time. He relied on the transport managers.

I asked about the vehicle based on the Isle of Wight. It was looking after a tank. It was there about 6 months. He knew that they had a garage there but didn’t know they needed an operating centre. I asked why Mr Gibbons was kept on as transport manager. He was invited into the office to check paperwork. He was still permitted in the office. He should have been removed from the licence.

I moved on to the issue of drivers. About 45% were employed through limited companies. The business was seasonal so they had sub-contractor drivers for flexibility. Mr Grundy was not aware that sub-contractors needed their own operators’ licences. He would now look in to it. The model of the business would not support all drivers being employed.

I asked why timesheets for the last week of June showed one driver doing 4 successive 18-hour days. Mr Grundy thought that they were not recording their breaks.

11. Submissions

I invited Mr Hayes to lead me through the legislation on domestic hours and exemptions, referring to Section 96(10) which enabled Ministers to create exemptions. I referred him to the 1986 Exemptions Regulations which specified particular relaxations in certain circumstances.

Mr Hayes did not appear to be close to the legislation and couldn’t really assist me. He accepted that the company was “in error”. It had started from humble beginnings. It grew rapidly. The principal director was a drainage engineer. It was accepted that they had not paid heed to the legislative requirements as they should have. Some transport manager appointments had been unsatisfactory. The DVSA inspection on 17 April had been a wake-up call. Ms Williams had been engaged and done a sterling job. She had corrected a lot of the issues. It was extremely unfortunate that she could not stay.

Rome was not built in a day. There were numerous issues. When there were so many new systems coming in there were bound to be teething problems. The company should be allowed time to get their house in order. The business now employed 35 – 40 people.

I asked about impact of regulatory action. Curtailment to, say, 8 vehicles could be made to work. Suspension for a month would be difficult. They wouldn’t be able to service their daily customers. Revocation would leave just the drainage business which wasn’t viable on its own. The two separate divisions were integrated. Disqualification would mean that he would have to go back to the drainage.

I reserved my decision.

12. FINDINGS OF FACT

12.1 Drivers hours rules and exemptions – the law

The scope of the EU drivers hours rules, EU Regulation 561/2006 as amended and retained in UK law, is set out at Article 2(1):

This Regulation shall apply to the carriage by road:

• of goods where the maximum permissible mass of the vehicle, including any trailer, exceeds 3.5 tonnes

Article 3 sets out exemptions which apply across Europe and UK. None is relevant here. Article 13 lists potential national derogations, all of which were adopted by the UK in 2006. The relevant derogation here is:

(h) vehicles used in connection with sewerage, flood protection, water,

gas and electricity maintenance services, road maintenance and

control, door-to-door household refuse collection and disposal,

telegraph and telephone services, radio and television broadcasting,

and the detection of radio or television transmitters or receivers;

So this operation is outside the EU drivers hours rules. There is no requirement for a tachograph. This is the exemption continually referred to by Mr Gibbons when he refers to vehicles returning from MOT with an exemption. Of course, it does not mean that a tachograph cannot be fitted and used to monitor compliance with domestic regulations.

The Transport Act 1968 considers driving time and rest periods in Part VI thereof. Section 95(1) identifies the purpose of the control:

(1)  This Part of this Act shall have effect with a view to securing the observance of proper hours or periods of work by persons engaged in the carriage of passengers or goods by road and thereby protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from fatigue.

The relevant scope is at Section 95(b)

• goods vehicles, that is to say—

• heavy locomotives, light locomotives, motor tractors and any motor vehicle so constructed that a trailer may by partial superimposition be attached to the vehicle in such a manner as to cause a substantial part of the weight of the trailer to be borne by the vehicle; and

• motor vehicles (except those mentioned in paragraph (a) of this subsection) constructed or adapted to carry goods other than the effects of passengers.

So all goods vehicles are in scope of the domestic hours rules.

Section 96 defines the permitted driving times and periods of duty within sub-sections (1) to (6):

• Subject to the provisions of this section, a driver shall not on any working day drive a vehicle or vehicles to which this Part of this Act applies for periods amounting in the aggregate to more than ten hours.

• Subject to the provisions of this section, if on any working day a driver has been on duty for a period of, or for periods amounting in the aggregate to, five and a half hours and—

(a)  there has not been during that period, or during or between any of those periods, an interval of not less than half an hour in which he was able to obtain rest and refreshment; and

(b)  the end of that period, or of the last of those periods, does not mark the end of that working day, there shall at the end of that period, or of the last of those periods, be such an interval as aforesaid.

(3)  Subject to the provisions of this section, the working day of a driver—

• except where paragraph (b) or (c) of this subsection applies, shall not exceed eleven hours;

• if during that day he is off duty for a period which is, or periods which taken together are, not less than the time by which his working day exceeds eleven hours, shall not exceed twelve and a half hours;

• …

(4)  Subject to the provision of this section, there shall be, between any two successive working days of a driver, an interval for rest which—

• subject to paragraph (b) of this subsection, shall not be of less than eleven hours;

(b)  …

 and for the purposes of this Part of this Act a period of time shall not be treated, in the case of an employee-driver, as not being an interval for rest by reason only that he may be called upon to report for duty if required.

(5)  Subject to the provisions of this section a driver shall not be on duty in any working week for periods amounting in the aggregate to more than sixty hours.

(6)  Subject to the provisions of this section, there shall be, in the case of each working week of a driver, a period of not less than twenty-four hours for which he is off duty, being a period either falling wholly in that week or beginning in that week and ending in the next week; but—

• where the requirements of the foregoing provisions of this subsection have been satisfied in the case of any week by reference to a period ending in the next week, no part of that period (except any part after the expiration of the first twenty-four hours of it) shall be taken into account for the purpose of satisfying those requirements in the case of the next week; and

(b)  …

I have omitted specific provisions that relate to certain types of bus and coach operations.  

Section 96(10) empowers Ministers to make regulations for exemptions in certain circumstances. Those powers have been used on several occasions but the relevant one here is The Drivers Hours (Goods Vehicles) (Exemptions) Regulations 1986, SI 1986 No 1492. Regulation 2 says:

• A driver who during any working day spends all or the greater part of the time when he is driving vehicles to which Part VI of the Transport Act 1968 applies in driving goods vehicles and who spends time on duty during that working day to deal with any of the cases of emergency specified in paragraph (2) below is exempted from the requirements of sections 96(1) and (3)(a) of that Act in respect of that working day subject to the condition that he does not spend time on such duty (otherwise than to deal with the emergency) for a period of or periods amounting in the aggregate to more than 11 hours.

(2)  The cases of emergency referred to in paragraph (1) above are—

(a)  events which cause or are likely to cause such—

(i)  danger to life or health of one or more individuals or animals or

(ii)   a serious interruption in the maintenance of public services for the supply of water, gas, electricity or drainage or of electronic communications or postal services, or

(iii)  a serious interruption in the use of roads, railways, ports or airports as to necessitate the taking of immediate action to prevent the occurrence or continuance of such danger or interruption and

(b)  events which are likely to cause such serious damage to property as to necessitate the taking of immediate action to prevent the occurrence of such damage.

So it would seem that some of the work carried out by this operator might fall in to this exemption. But what is an “emergency”. The Oxford English Dictionary gives this: “a serious, unexpected and often dangerous situation requiring immediate action”. In terms of road transport law, the Divisional Court considered the meaning of “emergency” in the case Higgins v Bernard (1972) W.L.R 455. That was a case where a motorist claimed as an emergency a feeling of drowsiness in defence to an offence of stopping on the hard shoulder of a motorway. Having concluded that too much emphasis should not be put upon the suddenness of the onset, Lord Widgery CJ concluded thus:

“The only remaining question is whether the defendant qualified on the test so described, and in my judgment I think he clearly did not, because if one thing is clear in this case it is that the drowsiness and the potential danger if he continued to drive was clearly apparent to him before he embarked on the motorway at all. Accordingly, it cannot be said that he got on to the carriageway of the motorway in circumstances in which the danger was not apparent, and that the danger thereafter supervened. The danger was clear to him before he elected to go on to the motorway, and he cannot plead its recognition as an emergency for present purposes. I would allow the appeal and send the case back with a direction to convict.”

In the case before me, the operator is contracted to provide vacuum tankers to a sub-contractor working on behalf of Southern Water. There is no doubt that there will be times when it is dealing with what, for some people, are emergency situations. But it cannot rely on that when it is contracted to shifts of eighteen hours on and six off. Should a pipe burst whilst they are on site and need to take action as their normal working time has elapsed, use of the “emergency” exemption might be reasonable. But there is no emergency when the operator could and should have planned to send a second driver. There is no emergency when a job continues beyond a single shift. There is no emergency when the direction of the engagement is known in advance. Nothing has supervened since the shift began. I find that successive shifts on the same job cannot be emergencies and it is not an emergency where it is pre-planned.

In case I am wrong on that, I will go on to set out what flexibilities the exemption actually provides. Mr Gibbons was entirely in error when he said, many times, “exempt means exempt”. Exempt means exempt from particular provisions and, in fact, only two of them. The driver may drive in excess of 10 hours and may be on duty more than 11 hours. Even then, the exemption only applies where the events “necessitate the taking of immediate action”, and sitting around on-call is not taking immediate action. In addition, the driver must still:

• Have an interval for rest between two consecutive working days of not less than 11 hours

• Not be on duty in any working for a period in excess of 60 hours, and

• Have a period of 24 hours break in each week

This operator was put on notice of serious breaches on 17 April2024. Those breaches included a driver driving for nineteen consecutive days. There were multiple occasions of drivers being on duty for eighteen hours. Drivers were getting only six hours between shifts on a regular basis. The operator was again put on notice of its dangerous practices by the three police encounters on 23 April, 28 May and 5 June. It was therefore a great surprise to find the following in the pre-public inquiry evidence:

Driver Nunes
w/c	Hours worked
24 June	69 (in 4 days)
17 June	56.75
10 June	64
3 June	105
27 May	40 (in 3 days)
20 May	48 (in 4 days)
13 May	79
6 May	95.5
28 April	77

From 7 to 17 May, driver Nunes worked eleven consecutive days and was on duty for 174 hours. That is astonishingly dangerous. He is referred to in the company documentation as a “valued member of our extended subcontractor team” and is employed through NAN Driving Services Ltd. He is the worst example in the sample provided but other drivers still regularly exceed 11 hours on shift. There has been no improvement arising from either the DVSA or police interventions. I find that the rules on drivers hours and tachographs have not been observed, Section 26(1)(f) is made out and I attach significant weight.

The Vehicle Examiner found maintenance systems to be shambolic with the operator and transport manager struggling to find inspection reports. It is to the credit of Erica Williams that I was provided with a transformed set of documentation, properly ordered and showing a high degree of compliance. No mechanical defects have been issued at the roadside, though the only inspections are of prepared vehicles at the fleet check. The MOT performance shows 4 failures from 32 tests which is slightly above the national average. The major concerns with driver defect reporting and slipped inspections appear to have been resolved by Ms Williams. I find that Section 26(1)(e) is made out but I attach little weight.

12.2 The good repute of Richard Gibbons

In many ways, Richard Gibbons is the author of much that has gone awry here. It was not in the call-up so I can attach little weight but it seems this operation was ongoing illegally for many years prior to applying for a licence. I was told that no licence was needed for the 7.5 tonne truck when it was only used to empty septic tanks as the ownership of the goods transferred to the company. Ownership of the product may have some relevance to the type of licence but it is not an exemption. But I can attach little weight without issue of a fresh call-up and the situation here is too dangerous for me to defer making a decision. So I record it for context only.

Mr Gibbons clearly does not understand the law at all. He confuses the exemption of a vehicle type from being needed to be fitted with a calibrated tachograph at MOT with the scope of the domestic drivers hours rules. He told me that he had spoken to DVSA but was unable to provide any evidence. I cannot believe that any DVSA officer would tell him that there was a grey area because there is not. The domestic rules apply to all goods vehicles, they set out strict limits on driving time and rest periods and the “emergency” exemption provides limited relief from limited elements. That is natural because otherwise the rules would not be “protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from fatigue”, which is their stated purpose.

Having set up dangerous and illegal working practices. Mr Gibbons then withdrew from the operation two years ago but allowed the operator to continue to benefit from his qualification through payment of a “retainer”. He knew he was wrong to do so. That is a straightforward dishonest act that prevented this operator from coming under scrutiny much sooner. It may even have recruited a competent and diligent transport manager to bring the danger to an end.

So Mr Gibbons is incompetent as a transport manager and devoid of any of the necessary hunger for compliance. He has been entirely dishonest because, as he told me, he needed the money. I find his good repute as transport manager is lost. I cannot think of anything that could correct the toxic combination of lack of knowledge, attitude and honesty. For that reason, his disqualification is indefinite and I would expect that to mean no less than ten years.

12.3 The good repute of Benjamin Oxley

The Vehicle Examiner’s findings are highly relevant to Mr Oxley as he was the transport manager actually in post at the time. In his report, Vehicle Examiner Collins tells me “It took the transport manager and admin staff considerable time to find emails from the maintainer with the PMI records attached. I asked how the PMI records were monitored if they were still attached to emails from the maintainer. No substantive answer forthcoming”. Many records were not signed-off as fit for service, reported defects showed no rectification. One vehicle had 130 days between inspections when the stated period was 42. Seventy-two percent of PMIs had driver-reportable defects present. Paperwork was in “complete disarray”.

Mr Oxley did not see fit to make any enquiry in relation to the drivers hours position. He simply accepted what he was told. He did not think to consider whether a vehicle based on the Isle of Wight for six months should have the benefit of an operating centre. Having been advised in the strongest terms of the need to ensure drivers had proper rest in April 2024, the situation persisted up until the inquiry. The obvious fatigue could easily have led to a serious crash and potentially death. It is the transport manager’s job to ensure compliance and that has to start with knowing what the rules are. I find that Mr Oxley is also devoid of that thirst for compliance that is so essential in a transport manager. He has simply not been up to the job. His good repute as transport manager is lost. He is not a hopeless case, however. The public inquiry will have been a wake-up call to him. So I set his disqualification is at the lowest level, being for twelve months. The rehabilitation is that he shadow a competent transport manager in a compliant operation or operations for at least three months.

12.4 The good repute of the company

“Mr Grundy explained that he was unaware of…”. That is a phrase found more than once in the Vehicle Examiner’s report. He claims to have been naïve, he blames his transport managers’ advice. He blames everyone but himself. At the inquiry, Mr Grundy still failed to see the danger his practices were creating. Instead, he told me it left him “embarrassed”.

In the legal context, knowledge goes wider than actual knowledge. Mr Grundy failed to ask the most obvious question – why does the law allow me to use drivers who must be dangerously fatigued just in case a pipe bursts? In not asking that obvious question, Mr Grundy has exhibited a high degree of fault, turning a blind eye to the blindingly obvious. In that context, it is unsurprising that Mr Grundy told me that he had undertaken no training nor learning in relation to his statutory duties as a director and the relevance of Sections 2 and 3 of the Health & Safety at Work Act 1974. I therefore find that he did have imputed knowledge of the company’s widespread regulatory failings.

Mr Grundy knew that Mr Gibbons had ceased to act as transport manager two years ago. He told me that Mr Gibbons was free to attend the operating centre to check on things if he wanted but accepted that he knew he had not done so. When the Vehicle Examiner enquired about Mr Gibbons, he was told that he was on holiday. He failed to explain that there had been a falling-out and Mr Gibbons had permanently left the business. Honesty is clearly not Mr Grundy’s strong point.

Section 58 of the 1995 Act defines the User of a vehicle, that is, the person who is required to be the holder of the operator’s licence, as “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”. It is accepted that 40 – 50% of the work is carried out by sub-contractors being limited companies. In a brief review of the compliance documents, I noted ABM Drainage Ltd, RC Embling Transport Ltd, J&M Drainage Ltd, NAN Driving Services Ltd. There are probably more. Mr Grundy finds this engagement model provides seasonal flexibility. Presumably the drivers find it allows for certain taxation benefits. The problem is that these sub-contractor limited companies are the Users of the vehicles, employing as their servants the drivers. Such an arrangement is very common in the aggregates sector but there it is done properly, with each sub-contractor holding their own operator’s licence. What has happened here is that vehicles have been driven by drivers working for companies that are illegal operators. This operator has lent its licence authority to those limited companies, all for commercial and financial gain on the part of all those involved. Traffic Examiner Cox noted the unusual employment arrangements in April but the operator does not appear to have understood the seriousness of the point and has done none of its own research. That is a strong negative point.

In conducting a balancing exercise, I must look for positives. Aside from the short-lived engagement of Ms Williams, they are hard to find, but I do give the company credit for the condition of the maintenance systems provided at the inquiry. It really is night and day compared to April. The prohibition performance is good but that can only be given limited weight given that the sample is three vehicles presented for a pre-arranged examination. Given the nature of the load carried, it is probably not a surprise that none have been targeted for roadside mechanical inspection. TE Cox noted in his pre-inquiry update that logbooks were now more detailed, training and toolbox talks have been introduced. A loading policy has been drafted and there is evidence of a disciplinary system (although the sub-contractor limited company is the subject of the disciplinary action, which is unusual and may not stand up if tested in law). This is the first public inquiry.

Those positives can do little to offset the negatives. Three and a half months after the advice from the Traffic Examiner, vehicles had still not had tachographs calibrated and they are not being used to monitor driving time. Mr Grundy complained that drivers were not keeping a full record of their breaks whilst on site. Whose responsibility is that if not his, as the “principal director”, as Mr Hayes describes him?

It is very rare that I come across an operation as blatantly dangerous as this one. I remind myself of the table at paragraph 51 above and that a driver booked 174 hours of work over 11 consecutive days – that coming two months after the strong advice issued by Traffic Examiner Cox.

I ask myself, as I am required to do, whether this is a company that can be trusted to be compliant in the future. In NT/2013/82 Arnold Transport & Sons Ltd v DOENI, the Upper Tribunal said this

• It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future”.

It is clear here that this operator has made no attempt whatsoever to regularise the duty periods of its drivers. I wasn’t even promised action at the inquiry although Mr Hayes did submit that the company should be given time. It has had time and the danger persists – what might more time achieve? I do not trust it to be compliant in the future. So does the operator deserve to be put out of business? That is the second question I must answer, and I answer it overwhelmingly in the positive. This is a dangerous operation whose danger has not materially diminished since clear advice was given to get its house in order. It must be brought to an end for the safety of itself and other road users. The operator’s good repute is lost.

12.5 Disqualification of company and directors

The danger posed by the blatant and extreme breaches of the drivers hours rules along with the apparent lack of insight in to that danger mean that, unusually for a first public inquiry, I do find that the operator and constituent directors need a period of learning and reflection before they consider operating large goods vehicles again. That is essential to achieving the objectives of the operator licensing regime. In line with the Senior Traffic Commissioner’s Statutory Guidance, for a first public inquiry with a very dangerous operation, I find that the appropriate period is 3 years.

13. DECISIONS

Pursuant to a finding of loss of good repute, Richard Gibbons is disqualified from acting as a transport manager for an indefinite period which I would not expect to be less than ten years.

Pursuant to a finding of loss of good repute, Benjamin Oxley is disqualified from acting as a transport manager for a period of twelve months. The rehabilitation is that he shadow a competent transport manager in a compliant operation or operations for at least three months.

Pursuant to a finding of loss of good repute, the licence is revoked in line with Section 27(1)(a).

Pursuant to a finding of a serious breach of undertakings, the failure to abide by the rules on drivers hours, the licence is revoked in line with Section 26(1)(f).

To allow for an orderly winding down, revocation will take effect from 23:59 hours, 7 September 2024.

Kelly Grundy, Mark Grundy and Pro Drainage Limited are each disqualified from applying for or holding an operator’s licence in any traffic area from 7 September 2024 and for a period of three years thereafter.

Kevin Rooney

Traffic Commissioner

12 August 2024