Abus Ltd recently recently appealed the decision made by the Traffic Commissioner (TC) for the West of England Kevin Rooney to suspend its licence over the meaning of ‘operator’ and ‘work’ in terms of section 81(1)(b)(ii) of the Public Passenger Vehicles Act 1981.
In his decision, contested by Abus Ltd on 7 September 2018, the TC found that the drivers of the vehicles were controlled by L C Munden and Sons Ltd, rather than Abus Ltd which meant that in terms section 81(1) (b) (ii) of the 1981 Act, that made their employer the operator of the vehicles (Munden and Sons Ltd).
A hearing was subsequently held at the Upper Tribunal in London on 15 February 2019.
In the appeal to the Upper Tribunal, the Secretary of State for Transport provided a written submission on the appeal, and found the TC had applied the wrong test when deciding whether the appellant was an operator under section 81(1)(b)(ii) of the 1981 Act. The question posed was “For whom do these drivers work?”
The Secretary of State noted that the TC should have drawn on the prevailing principles of employment law, and that the focus of Section 81(1)(b)(ii) is not on control but on the identity of the person for whom the drivers work.
The Secretary of State also stressed the importance of focussing on what was happening on the ground, and what one would expect should be happening based on the written terms.
It was subsequently found by the Upper Tribunal, that the submissions of both the appellant and Secretary of State were correct in that the drivers were working for Abus and as such Abus was the operator of the vehicles driven by the Mundens’ drivers.
The appeal was allowed on 12 April 2019.
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