Decision

Decision for Robinsons Foods Limited

Published 11 November 2022

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. ROBINSONS FOODS LIMITED

1.1 OC2033456

2. DECISION OF THE TRAFFIC COMMISSIONER

2.1 In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

3. Public Inquiry held at Golborne on 24 October 2022

4. Background

Robinsons Foods Limited (“the operator”) has held a restricted goods vehicle operator’s licence, OC2033456, since 22 September 2020 authorising the use of three vehicles and one trailer.

The operator was called to a public inquiry after a DVSA investigation into its management of drivers’ hours in January 2022. The investigation revealed numerous infringements including 15 instances where vehicles had been driven without a digital driver’s card inserted in the tachograph during the period from November 2021 to January 2022.

Further the investigation identified that one of the operator’s two directors, Laura Robinson, had been removed from the Companies House register in September 2021 but this change was never notified to my office.

The investigation also raised concern about whether the remaining director and responsible person, Richard Robinson, had fully completed his attendance at a new operator seminar. Video evidence indicated he was present at the very start of the online seminar but had left before the introduction was completed. When asked about the matter in interview in May 2022, Mr Robinson had no recollection of attending such a seminar.

All of these matters prompted the call to the Public Inquiry.

Neither the operator nor its director had previously been called to a Public Inquiry or been the subject of regulatory action.

5. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 8 August 2022. The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(f) and 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

Three of the drivers alleged to have been involved in the infringements were called to a conjoined driver conduct hearing.

Mr Robinson sent an email to my office after the call up was issued stating that, “the company is not in a position with staff or in a financial position to carry on running wagons.” A request to surrender the licence was made. This was not accepted due to the gravity of the allegations to be considered and the operator was informed the public inquiry would proceed. In reaching that decision, I had regard for the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10 and the decision of the Upper Tribunal in 2015/010 Cornwall Busways Limited.

6. The Public Inquiry

The Public Inquiry and related driver conduct hearing was heard at Golborne today. The operator was represented by Mr Robinson who was accompanied by his operations manager James Hamblett.

One driver attended as required. The decisions in relation to the drivers have been recorded separately

7. Evidence

Mr Robinson accepted the findings of the Traffic Examiner’s report as contained within the brief, but he insisted that he had not actively instructed drivers to pull their cards.

Mr Robinson accepted that he had not notified the departure of the other director (his former wife, Laura Robinson) as he was unaware of any requirement to do so. He explained that Mrs Robinson had been responsible for the administration of the licence application, and he had not read any of the licence documentation.

Mr Robinson also stated that he had not produced any documentary evidence for the hearing as Mrs Robinson remained responsible for administration and he had not been able to obtain that information.

Mr Robinson explained that he had started his egg business in 2008 and it had grown to the stage where large goods vehicles were needed. He admitted that he had done very little to acquire any knowledge on the expectation of an operator licence holder. Mr Robinson said he could not recall attending the new operator’s seminar and suggested that as he had other commitments it is likely that he was called away.

Mr Robinson said he did not know that he was meant to arrange the download of vehicle units and drivers’ cards until someone from a driving agency highlighted it to him. I also asked if, regardless of the actual data, it had occurred to him from the hours being worked by the drivers that they may have been exceeding the requirements. Mr Robinson replied that he was personally too busy to keep track of the drivers.

I was told that following the Traffic Examiner’s visit, Mr Robinson and Mr Hamblett had read through the information on drivers’ hours that he left with them and had also met with their drivers to try to reduce the risk of infringements.

Mr Robinson had then concluded that it was too challenging to continue to operate his own vehicles. He has used third party hauliers and his own vehicles have been parked up. The arrangement has been successful, and Mr Robinson said he had no intention of seeking a licence in future. The vehicles are being sold.

Mr Robinson said the decision was influenced by the challenges he had experienced in recruiting reliable drivers and the financial costs of running the vehicles. I noted that financial evidence had not been provided by Mr Robinson, but he sought to assure me the operator had the required amount of funds available.

8. Findings of fact

I find that the allegations made in Traffic Examiner Batten’s statement are proved.

In relation to the suggestion that Mr Robinson actively instructed drivers to pull their cards or otherwise fail to comply with drivers’ hours rules, I note his strong denials and give him the benefit of the doubt on that point. Nevertheless, Mr Robinson must accept responsibility that the absence of any meaningful management of the drivers effectively permitted such breaches to occur repeatedly.

I make the following specific findings based on the evidence contained within the brief and which has not been contested by the operator:

• The interview with Mr Robinson and his evidence indicates that he had little or no knowledge of the expectations of a director with responsibility for holding an operator’s licence and specifically the action needed to ensure compliance with drivers’ hours rules.

• Mr Robinson failed to complete attendance at a new operator’s seminar that may have gone some way to provide that knowledge.

• Mr Robinson had entrusted the management of the licence to an operations manager who also clearly lacked the knowledge required to effectively manage a compliant large goods vehicle operation.

• The operator failed to provide any training or instruction to its drivers on drivers’ hours and tachograph operation.

• The operator did not have an effective system to identify drivers’ hours infringements. Specifically, its systems did not allow for infringements to be identified as the operator did not undertake a meaningful comparison of drivers’ card data with vehicle unit data.

• Consequently, the operator allowed its drivers to commit persistent and serious breaches of drivers’ hours regulations over a 3-month period without identifying those issues and taking steps to prevent recurrence.

• Even without an effective analysis of the tachograph data, a competent operator should have questioned whether the lengthy hours worked by the drivers could ever have been compliant with the rules.

• The real danger caused by the operator’s approach is exemplified by an incident on 12 January 2022 when a driver was permitted to work for over 22 hours in one day including a period of 8 hours driving without a break. During that period the driver described being involved in a minor collision on a motorway that I found was likely to have been caused by fatigue.

• The failure to notify my office of the removal of a director is further evidence of the lack of knowledge of the operator about licence compliance.

These findings lead to my determination that the grounds for regulatory action in section 26(1)(f) of the Act are met in that the operator has not honoured the undertakings it signed up to when it applied for the licence, namely that it that you would observe the rules on drivers’ hours and tachographs and keep proper records.

Further I find that the conduct of the operator and its director Mr Robinson as described above means that they can no longer be considered to meet the requirement of fitness in the Act. This amounts to a material change to the fitness of the operator for the purposes of Section 26(1)(h) of the Act.

Given these findings, I do not reach any determination on whether sufficient financial resources are held.

9. Relevant considerations

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

I treat as a positive feature that in the 12 months after the grant of the licence and prior to the encounter in November 2021, the operator had not come to attention for any previous offending history. This is the first public inquiry for the operator and its director.

I also give credit to Mr Robinson for attending the public inquiry after he was informed the surrender was not accepted. This credit is tempered however by the failure to produce the requested documentary evidence.

On the other hand, I identify the following negative features.

• The number of drivers’ hours infringements over a 3 month clearly amounts to persistent offending.

• The operator adopted a reckless approach to management of driver’s hours that led to an undue risk to road safety.

• There were wholly ineffective or no analysis procedures in place to detect falsification or drivers’ hours infringements.

• There were insufficient procedures in place to ensure appropriate use of tachograph or manual records (including digicards) by drivers.

• I was not presented with any tangible evidence of sufficient and effective changes being made since the DVSA investigation to ensure future compliance.

The negative features far outweigh the positive features, and I am satisfied that this is a case that falls in the category of “serious to severe” for the purposes of assessing the starting point for regulatory action.

I have gone on to consider the Priority Freight and Bryan Haulage questions.

In relation to the first, I do not have any confidence that the operator in the control of Mr Robinson can be trusted to be compliant in future. Mr Robinson has chosen to attempt to surrender the licence rather than cooperate with the public inquiry process and provide me with assurances about his future compliance. The evidence shows a total lack of knowledge on the requirements of effective management of drivers’ hours. Mr Robinson had the opportunity to acquire some of that knowledge at the new operator’s seminar but failed to take it. In those circumstances, I cannot have any confidence that as matters stand the position will change.

I have then considered the Bryan Haulage question of whether the company deserves to be put out of business. I note first that this is a restricted licence where the use of large goods vehicles supports the wider business rather than be central to it. I also note the operator has already indicated that it does not seek the continuation of the licence for staffing and financial reasons.

The extent of the failings in this case and my concern about the operator’s ability to manage a safe and compliant operation is such that I am satisfied it is proportionate to direct the revocation of the licence.

Turning to the question of disqualification, I have taken account of the fact that this was the first public inquiry for the operator and Mr Robinson as director. Mr Robinson appears to have acknowledged his significant shortcomings in managing the licence and his decision to cease operating vehicles is some recognition of his failings.

I am satisfied that this experience will have brought home to Mr Robinson the heavy expectation on a licence holder and that he would be better informed if he ever decided to apply for a licence in future.

I accept that there is no likelihood that the operator or Mr Robinson will seek a new operator’s licence in the foreseeable future, so for that reason I will withhold from making a disqualification order.

That does not mean that any future application will escape scrutiny. Any future application would need to be supported by evidence that he had sought training and independent advice (including attendance at an operator licence awareness training course provided by a recognised organisation) and that there was no risk that the events of the past months on this licence would be repeated.

I do not make any order in relation to former director Laura Robinson as she had ceased to be a statutory director before the date of the first infringement identified by DVSA and I did not see any tangible evidence of her active involvement in the management of the licence.

10. Decision

I direct the licence must be revoked on the grounds set out above. I allow a 28-day period for the operation of the large goods vehicles to be wound down in an orderly manner.

Gerallt Evans

Traffic Commissioner for the North West of England

24 October 2022