Decision

Decision for S L Transport (SW) Ltd (OH1084960) and Transport Manager Zena May

Published 27 April 2021

0.1 S L TRANSPORT (SW) LTD

0.2 OH1084960

0.3 ZENA ANN MAY: TRANSPORT MANAGER

1. PUBLIC INQUIRY IN BRISTOL

1.1 27 OCTOBER 2020

2. BACKGROUND

S L Transport (SW) Ltd is the holder of a standard international goods vehicle operator licence granted on 4 March 2009 and authorising the use of twenty-three vehicles and four trailers from sites in Chippenham and Wootton Bassett. Nineteen vehicles are currently recorded as in possession. The sole director is Shirley Lait. The transport manager is Zena Ann May.

The same company previously held licence OH0211716. This was revoked at public inquiry with effect from 10 December 2008. A second director and then transport manager, Stephen Lait, was disqualified indefinitely in both respects.

DVSA Traffic Examiner Gregor Bell and Vehicle Examiner Stephen Pike conducted a joint investigation starting on 5 July 2019. TE Bell found large amounts of mileage unaccounted for, gaps in digital tachograph card downloads and concerns around compliance with the working time directive. There were significant drivers’ hours offences committed with three drivers referred for prosecution. VE Pike found a more positive picture albeit there was a lack of brake performance testing.

A concern arose with respect to the role of Stephen Lait, particularly as it was he who had returned the licence continuation checklist in February 2019, signing it as “director”.

These matters were referred to me and I called the operator to public inquiry on the following grounds:

under Section 26(1)(b) of the Act, that the operator had failed to notify events which affected good repute or professional competence

under Section 26(1)(c) of the Act, that drivers had incurred convictions

under Section 26(1)(e) of the Act, that statements made when applying for the licence, specifically in relation to finances and maintenance, were either false or not fulfilled

under Section 26(1)(f) of the Act, that undertakings had not been honoured in relation to the fitness of vehicles, observance of drivers’ hours rules, keeping of records and reporting of convictions

under Section 26(1)(h) of the Act, that there had been a material change in the company’s control

under Section 27(1)(a) of the Act, that the operator was no longer of sufficient financial standing, professional competence or good repute

Ms Zena Ann May was called to the inquiry to consider her good repute as transport manager. Drivers David Papworth, Steven Wickson and Adrian Iles were called to consider their conduct as the holders of vocational driving licences.

3. THE PUBLIC INQUIRY

Shirley Lait and Zena May attended for the operator represented by Chris Powell, solicitor. Also present was driver Adrian Iles.

Proceedings were recorded and a transcript can be produced as required. I do not record all the evidence here, only that which is necessary to come to a decision.

3.1 Preliminary matters

The driver conduct hearing for Adrian Iles and David Papworth took place. Their outcome is recorded elsewhere and not repeated here.

redacted.

3.2 Opening submissions

Mr Powell opened by indicating that the operator was prepared to offer undertakings in relation to the employment status of drivers and that all drivers would undergo their next CPC course on drivers hours and tachographs. An application had been made to regularise the shortfall in authorisation for trailers. An application had also been made to add a Mr David Chivers as a transport manager. The arrangement with Maritime was accepted as being unsuitable and had come to an end in January 2020. Zena May attended a 2-day transport manager refresher course in October and Mrs Lait was booked to attend an operator licence awareness course in November. Stephen Lait had played a role in the business in relation to maintenance but that changed for a short period in 2019 because Mrs Lait had to step back. It was accepted that Mr Lait’s login credentials had been misused by Ms May.

3.3 The evidence of Shirley Lait

The business was a mixed transport operation with a range of vehicles from 7.5 tonne to 44 tonne, the main customer being Palletways. Eighteen vehicles were currently in operation. The vehicles all had digital tachographs. It was a family business. It was acknowledged that Stephen Lait had been disqualified in 2008. The drivers were all employed by the company apart from some agency drivers. It was a family business. Ms May was Mrs Lait’s sister, her husband and two sons were both involved.

Since her husband’s disqualification, she had taken over the general running of the business. Stephen was primarily in the workshop, driving, and only occasionally in the office to cover holidays. He had also taken on a business development role. She had taken a bit of time out in 2019 and Mr Lait had taken on a bigger role. At the time of the DVSA visit in July, Stephen was in the office. He had taken the interview with DVSA as he had a more detailed knowledge. Since November 2019, Mrs Lait was back in the office full-time and her husband was back in the workshop. Mrs Lait was the decision-maker. In relation to Stephen Lait having signed the licence continuation document as “director”, that should have been signed by Mrs Lait. Mr Lait hadn’t read the small-print.

Referring to Mr Lait’s interview statement (pg 191 of the brief) where he had said “She (Mrs Lait) is a director but prior to this week wasn’t involved in the company”, Mrs Lait said that meant she wasn’t in the office every day but was overseeing everything full time.

I asked why Mr Lait wasn’t present at the inquiry. I was told he would have found it very stressful. I enquired on Mrs Lait’s role in relation to agreeing rates with customers. Mr Lait did the talking with customers and negotiating because that was his strength but the final decision was hers. The electronic continuation submitted in February 2019 had been done online using Mr Lait’s login credentials – Mrs Lait did not know who had done that.

redacted had been furloughed from his own job since March and then made redundant. That seemed like a real opportunity to strengthen management in the business. redacted was a consultant who had helped put systems in place. I was offered an undertaking to have a transport consultant attend once a month leaving redacted and herself overseeing compliance.

The company had found the DVSA investigation very helpful. They were shocked when they were told that drivers had been pulling their cards. There was no benefit to the company whatsoever. She had not been aware that the drivers’ convictions needed to be notified to my office. I was offered an undertaking for a compliance audit.

I asked why, when the Vehicle Examiner had pointed out in July 2019 that there needed to be brake testing but no action taken until October 2020. Mrs Lait had spoken to Ms May in January to set up a schedule but Ms May became sick in February, possibly Covid. It then took some time to find out where brake tests could be done. It had gone out of her head until the call-in letter arrived. A new calibrated torque wrench had been bought.

Agency drivers now had to complete a form before starting work and their cards were downloaded at the beginning of the shift. The transport manager hadn’t mentioned that the systems needed to be updated. TE Bell had suggested ChartCheck and they had used that. Mr Hood had since installed a new system. The company hadn’t really moved across very smoothly to the new digital tachograph system.

I asked Mrs Lait about keeping up to date with digital vehicles and noted that the company had first specified a digital vehicle back in 2011. It seemed to have taken a lot of time to get up to date. Mrs Lait couldn’t answer and said she hadn’t realised how different the digital tachograph was to the analogue. I asked why Stephen Lait and not her had attended the new operator seminar. Mrs Lait thought he would benefit more. Mrs Lait accepted there wasn’t much point in him going as he wasn’t the director. I put it plainly that my view was that Stephen Lait was running the operation. Mrs Lait denied that but acknowledged that the drivers respected him.

3.4 The evidence of Zena May, Transport Manager

Since the Traffic Examiner investigation, they had better processes especially since David Chivers became involved. Prior to the investigation, she had been analysing drivers hours from the driver cards and driver timesheets. She hadn’t realised that she wasn’t seeing the full picture. She was shocked when she heard that drivers had been pulling their cards. She immediately got ChartCheck involved. When the first batch of reports was received, she sat down with the drivers to show them the new system. More recently, Mr Hood installed a better system and spent a day training her. The new system was more user-friendly. Mr Papworth had been identified as not using his card in September (2020) by producing the missing mileage reports. Ms May spoke with Mrs Lait, who spoke with Peninsula and the driver was dismissed for gross misconduct. A long-term agency driver had also been subject to the disciplinary process.

The role of Mr Chivers wasn’t yet fully defined. He had checked the MOTs and might be checking the driving licences. The refresher course had been helpful. Problems wouldn’t reoccur because she had been trained on the new system and they had a maintenance programme. Mr Chivers was available to assist.

I took Ms May back to the time of the DVSA investigation and asked who was doing what. Ms May was managing maintenance and drivers hours. Stephen was getting business in on the phone, nothing more. Referring to page 182 of the bundle, I noted Mr Lait had described his role in interview as “I do routing of vehicles, booking for the transport, oversee defect sheets, allocate drivers, vehicles to the jobs, planning/scheduling”. Ms May, who was present at the time, denied that Mr Lait undertook those roles and didn’t know why he had said that nor why she hadn’t corrected him.

Asked why Mr Lait attended interview rather than Mrs Lait. Ms May told me that it had to be either Mrs Lait or Mr Lait. I put it clearly to Mrs May that it was hard to avoid a finding that Mr Lait was a de facto director. Ms May agreed that was what the evidence pointed to.

I confirmed with Ms May that the company had indeed benefitted from the offending of Mr Papworth since it meant him getting back on Friday night rather than Saturday. Returning Saturday would have interfered with the weekly rest requirements. I asked why it had taken until October 2020 to start downloading agency driver cards before duty. Ms May couldn’t tell me why that improvement hadn’t happened in response to the DVSA investigation a year ago.

Ms May could not tell me why there was no action taken in relation to the lack of brake testing identified by DVSA in July 2019. She had asked Mrs Lait on several occasions and it wasn’t until this year that she had got agreement for regular brake testing. They were being done now. Half a dozen had been done so far.

The contract with Maritime was for one vehicle only. Without it, there was no other work for Mr Papworth. Ms May accepted that Mr Papworth was put under undue pressure by Maritime. There had been discussions with Maritime about the jobs they were giving him. It didn’t work and he was taken off it. Mr Papworth had been dismissed the previous week because he had left his card at home and driven without a card. I asked whether he had been dismissed for presentational reasons ahead of the PI. Ms May didn’t know whether any drivers’ hours offences had been committed. I suggested the action was heavy-handed.

3.5 Closing submissions

Mr Powell submitted that the dismissal of Mr Papworth had not been a cynical attempt to curry favour. The last public inquiry was ten years ago. There had then been no negative compliance history until the middle of 2019. The company had lost a large contract at the end of 2018. That led to a restructuring. Mrs Lait stepped back from the business during a period of change and Mr Lait stepped forward. There had been a lack of refresher training which had now been remedied. Drivers had, for a variety of reasons, taken advantage.

It was the company’s position that Mr Lait had always been involved. The period in 2019 did not go as far as to be a breach of the disqualification order. Alternatively, if it was a breach, it was unintentional, time-limited and had been remedied.

The Vehicle Examiner, apart from brake testing, found “generally the operator is doing well”. That is supported by the roadside performance with no prohibitions from five encounters. The company fully cooperated with DVSA. Nine traffic roadside encounters had also been clear. The company just didn’t know the card removal was going on. Ms May had now received training on the tachograph analysis and action had been taken with two drivers. A compliance audit was offered as an undertaking.

The Traffic Examiner commented that Ms May was “trying hard”. She was now working in a “support bubble” with Mr Chivers, Mrs Lait and Mr Hood.

The company was under no illusions that it was on thin ice. Drivers were aware that they were now operating in a zero-tolerance environment. The undertaking for a compliance audit was an insurance policy. Undertakings for financial standing and driver employment presented no difficulty. An undertaking was also offered for a roller brake test on every other PMI which I said was unacceptable to me. I was then offered an undertaking for a roller brake test at every inspection with alternative tests laden.

I asked for a clearer explanation of the role of Mr Chivers and was told that hadn’t been confirmed yet. I provided seven days for clear job descriptions. This was provided but added little clarity.

4. CONSIDERATION AND FINDINGS OF FACT

Having been offered an undertaking for brake testing, I have no ongoing maintenance concerns. As at today, I am also satisfied that the compliance systems are in place to manage drivers hours and tachographs and would expect the operator to adopt a less heavy-handed approach in future.

There are two main concerns remaining. The first is the dire state of drivers hours and tachograph management in 2019, which is largely accepted. The second is whether Mr Stephen Lait breached his disqualification order at least during 2019.

In relation to compliance systems, Ms May allowed herself to become hopelessly out-of-date. Being a transport manager is a professional role. Transport managers are expected to keep themselves competent. Recital 11 of EU Regulation 1071/2009 states that “applicants for the post of transport manager should possess high-quality professional knowledge”. The Senior Traffic Commissioner’s Statutory Guidance says the following:

Continuing Professional Development (CPD) is the term used to describe the learning activities professionals engage in to develop and enhance their abilities. This practice promotes learning to be conscious and proactive, rather than passive and reactive. CPD can take many forms such as training workshops, conferences and events, e-learning programs, best practice techniques and ideas sharing. If there has been sometime since CPD was undertaken the starting point for evidence would be for the completion of a 2 day transport manager CPC refresher course, run by a trade association (FTA/ RHA/ BAR/ CPT), a professional body (IoTA/ CILT/ SOE/ IRTE) or an approved exam centre offering the relevant transport manager CPC qualification for the type of licence held. By way of comparison, drivers are required to complete 35 hours of periodic training every 5 years to keep their Driver Certificate of Professional Competence.

I am told that Ms May had not, by July 2019, acquainted herself fully with the operation of digital tachographs and analysing the records they make to the extent that no analysis of the vehicle unit data was undertaken. Digital tachographs have been required to be fitted since May 2006. The operator specified redacted on 12 October 2011. That vehicle was required to be fitted with a digital tachograph. Five more digital vehicles were specified in 2012. Seven years later, drivers are pulling their cards and falsifying records. On being told this, the operator reports as being “shocked”. Had the operator analysed the data from the digital tachograph vehicle units, they need not have been shocked. It is astonishing to find such a fundamental lack of knowledge of the devices thirteen years after their introduction.

Article 10(2) of EU Regulation 561/2006 states:

1. A transport undertaking shall organise the work of drivers referred to in paragraph 1 in such a way that the drivers are able to comply with Regulation (EEC) No 3821/85 and Chapter II of this Regulation. The transport undertaking shall properly instruct the driver and shall make regular checks to ensure that Regulation (EEC) No 3821/85 and Chapter II of this Regulation are complied with.

Mr Papworth’s work was not directed by this operator at all, but by the customer. An essential part of the transport manager’s role is “the assignment of loads or services to drivers and vehicles” (EU Regulation 1071/2009, Art. 4(2)(c)). That role cannot be delegated to a customer. Insofar as it was described to me by the driver and the operator, the arrangement with Maritime was wholly unsatisfactory and unlawful. Both the operator and the transport manager were responsible.

Ms May is glacially slow to act. Vehicle Examiner Pike identified issues with the lack of roller brake testing on 10 July 2019. Roller brake testing was introduced in October 2020 and, even at the date of the inquiry, only six had been carried out on a 19 vehicle, 6 trailer fleet. Ms May describes, in interview (pg 182) her role as “the computer input of the defect sheets, downloads of the tachograph data, maintenance records, daily defect sheets.” That is a description of an administrative role, not that of the person who is continuously and effectively managing a transport operation. Ms May has had some refresher training and training on using tachograph analysis software but it appears to have come about only because of the public inquiry. It is, quite simply, too little, too late to outweigh the severe failings in management of the operation in 2019. Her good repute as transport manager is lost.

I am told that it was Stephen Lait who agreed arrangements with customers and that would include Maritime. It is clear from her evidence that Shirley Lait has respect for her husband’s knowledge and judgement, and acts on his advice to the point that he is, I find, a shadow director.

In interview, Stephen Lait describes his role (pg 182) “I do routing of vehicles, booking for the transport, oversee defect sheets, allocate drivers, vehicles to the jobs, planning/scheduling”. I compare that with Article 4(2)(b) of EU Regulation 1071/2009, which describes the core functions of the transport manager as “vehicle maintenance management, verification of transport contracts and documents, basic accounting, the assignment of loads or services to drivers and vehicles, and the verification of safety procedures”. I find that Stephen Lait has acted also as a shadow transport manager.

There are positives. On road compliance in the last 5 years has been sound. Apart from brake testing, the Vehicle Examiner found little of concern. The company cooperated at the time of the investigation. New systems have been put in place, albeit seemingly only at the trigger of the call-in letter.

The serious deficiencies with the drivers hours management systems, the lack of prompt action on the DVSA advice and breach of disqualification order, suggests to me that the answer to the “Priority Freight” question of how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime, is, as it is currently constituted, highly unlikely.

If the evidence demonstrates that future compliance is unlikely then that will, of course, tend to support an affirmative answer to the “Bryan Haulage” question: is the conduct such that the operator ought to be put out of business? As currently constituted, that is my finding.

All the evidence points to a key role having been played by Stephen Lait. This is a moderate size business. Much has been done in the immediate run-up to the inquiry. I do accept Mr Powell’s submission that the breach of the disqualification order was not deliberate. This is a family business and to expect Mrs Lait not to look to her husband for advice is unrealistic. Without having met Mr Lait, I cannot form a view as to his ability to run a compliant business but 12 years have passed since his disqualification That is a long time and I am willing to give him a chance to prove himself. But he must put himself on the face of the licence by becoming a statutory director. To enable that, in relation to his role as a director only, I will, on application, set aside the disqualification order if Mr Lait can satisfy the conditions at paragraph 29 of TC Miss Bell’s decision of 28 August 2008. So, I find that the company has lost its good repute unless it restructures itself. If the following undertaking are accepted, the licence will continue at a reduced authority to mark the seriousness of the drivers hours breaches:

• Mr Stephen Lait will become a statutory director of the business by 28 February 2021 and will attend a two-day transport manager refresher course

The operator offers the following undertakings and they are attached to the licence:

• All drivers will either be employed directly by the company on a PAYE basis, or employed through a bona fides employment agency

• All authorised vehicles and trailers will undergo a roller brake test at every inspection with, as a minimum, alternate tests undertaken laden

• An audit shall be conducted by a competent independent person by 30 June 2021. The scope of the audit shall include systems for the management of maintenance, driver licencing, drivers hours and working time and the role of the transport manager in line with the requirements of EU Regulation 1071/2009 and STC Guidance. The audit report will be prepared, acted upon and retained for at least 2 years. A copy of the report together with the operator’s plans for implementing any recommendations will be forwarded to the Office of the Traffic Commissioner by 30 June 2021.

By reducing authorisation to 19 vehicles, due to the drivers hours failings which make out Section 26(1)(f) of the Act, I find that financial standing is now met and no period of grace is necessary. An application to add Mr David Chivers has been made and I allow a period of grace in relation to professional competence until 28 February 2021 for that to be concluded.

5. DECISION

The good repute of Ms Zena May as transport manager is forfeit and she is disqualified from acting as such until she sits and passes again the transport manager CPC examination.

The operator is without professional competence and Sections 27(1)(a) and (b) are made out. I provide a period of grace until 28 February 2021 to restore professional competence.

If the operator does not accept the undertaking at paragraph 46 above, following a finding of loss of good repute, the licence is revoked with effect from 28 February 2021.

The licence is, pursuant to Section 26(1)(f), curtailed to 19 vehicles with immediate effect and for a minimum period of 12 months.

The application to increase trailer authority to 6 is granted.

Kevin Rooney

Traffic Commissioner

13 December 2020