An Unforeseen Consequence of Being Your Own Transport Manager
If you hold an operator’s licence, there can be a number of advantages to being your own Transport Manager: You save a wage that you would otherwise have to pay. You can keep a proper overview of your drivers and their adherence to their drivers’ hours, working time and continuing education. You can keep a direct oversight of the maintenance of your vehicles and the general pulse of your business.
The disadvantages, too, are manifest. To discharge your duties as a Transport Manager requires diligence, attention to detail and often antisocial hours. It is all too easy miss something vital. In short, if done properly, it is hard work and a lot of responsibility.
Beware however: it can be all too easy to let regulatory compliance slip whilst you are also trying to run a business.
So What Happens When it All Goes Wrong?
Most of us know the basics. Your business will come to the attention of the Traffic Commissioner. This often arises after the DVSA stop one of your lorries or buses and discover irregularities. On other occasions, a spot inspection by the DVSA on your operating centre uncovers failures in your record keeping and maintenance.
If it is bad enough you will be called in to a Traffic Commissioner’s Public Inquiry. An Operator who is his or her own Transport Manager will be called in both in their capacity as Operator and as Transport Manager. For those of you who like getting post, you can expect two call in letters!
It is often the case that such an Operator has simply become overwhelmed by running the business at the same time as trying to carry out his or her Transport Manager duties. In other cases he or she might simply not be up to the job of being a Transport Manager despite being CPC qualified.
It is Here that the Law Gets Interesting and a Little Inconvenient
After the decisions of the Upper Tribunal in T/2014/25/26/ H Sivyer (Transport) Ltd and Simon Sivyer {2014 UKUT 404 (AAC) (Sivyer) and T/2015/49 Matthew Reynolds [2016] UKUT 0159 (AAC) (Reynolds) it is established law that a Transport Manager had “demonstrated professional competence by passing or holding a relevant and recognised qualification, professional competence could not be lost” per HHJ Beech, (Reynolds, para 2).
The problem that this creates is that a Traffic Commissioner who is faced by a plainly incompetent Transport Manager is left with one option, namely finding that the Transport Manager has lost his Repute. This can happen to a person who “can otherwise be found to be a man of integrity,” Per HHJ Beech (Reynolds, para 27).
If a Traffic Commissioner finds that a Transport Manager has lost their good repute then they are “required to disqualify them in that capacity,” per HHJ Beech, T/2017/55 Alastair Walter (Walter) (No citation as yet)
The question then arises whether an operator who is also a Transport Manager can keep his repute as Operator when he has lost it as Transport Manager. Is it the case that, once an individual’s repute is lost, it is lost for both roles irrespective of what hat he/she was wearing when they lost it?
A Grey Area of Law
It is probable that if a Traffic Commissioner wishes to leave an Operator with their repute as Operator, the Operator having lost it and having been disqualified as Transport Manager, then the answer might be that it can be done through considering proportionality and addressing that issue “with reference to Bryan Haulage (No.2) (2002/217 and Priority Freight (2009/225),” per HHJ Beech (Walter, para 24)
However the issue has yet to be fully considered by the Upper Tribunal and it is perfectly possible that the strict position in law is that that a sole trader or single director of business that holds an Operator’s licence, whilst being a person of the highest integrity, could be so woefully inadequate in their role as Transport Manager that they lose their repute. This would lead to them being disqualified in that role. If Repute is indivisible then it would be lost qua Operator as well which would then lead to the loss of the licence.
Why Does it Matter?
The eventual outcome of this knotty area of transport law will be of critical significance to an operator who is also their own Transport Manager. It is essential to seek legal advice from a specialist transport lawyer. At Smith Bowyer Clarke, our transport barristers and solicitors have years of experience representing operators and transport managers at Traffic Commissioner’s Public Inquiries. Call now for a no-obligation, free initial consultation and find out how we can help.
