Backhouse Jones hosted another of its webinars this month, which was packed full of useful information for operators. Peter Jackson reports
This year, Clitheroe-based transport law firm Backhouse Jones is celebrating an impressive milestone: 200 years in business. Having started out as Backhouse in 1819, the company began to specialise in transport following the introduction of the inaugural Road Transport Act in 1930. It rebranded as Backhouse Jones in 1999, a name which is today more familiar than ever amongst coach and bus operators nationwide.
Besides offering a range of industry-specific legal services to operators, it’s also well-known for offering free legal advice at conferences and seminars, as well as at its own free-to-attend events. However, for busy operators or those based in far-flung counties of the British Isles, going along in person to an event isn’t always practical. Enter webinars. Backhouse Jones hosts these free online events regularly, allowing operators to ask questions anonymously and benefit from free legal advice from the comfort of their own office.
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The latest webinar included discussion of bridge strikes, driver conduct, age discrimination in the workplace, illegal workers and the benefits of establishing a holding company.
A tough stance on bridge strikes
Kicking off the presentation was company Director Jonathon Backhouse, who began with an update on the UK’s Traffic Commissioners (TCs). He reminded operators that there are eight traffic areas in the UK, each of which has its own TC. Some of these are set to change soon however, as Nick Jones is due to retire in December before his 66th birthday. Although his replacement hasn’t been announced yet, Jonathon confirmed that he or she will be Welsh-speaking – welcome news for the country’s operators. Simon Evans, TC for the North West region, is planning to step down by the end of the year to become a Deputy TC; his replacement is also yet to be confirmed.
“We’ve had quite a few changes to the line-up of TCs in the last few years,” Jonathon said, “and so I expect the scene to look quite different in the near future. Every TC brings new likes and dislikes and a different approach, so it’s worth getting to know them.”
Jonathon then turned his attention to the subject of bridge strikes, a topic which he noted as being “very much in vogue” at the moment. There is currently an average of five incidents each day across the UK, he said, which cause severe delays across the rail network. As a result, TCs are being pressured by Network Rail to take serious action on the matter. “It really is a huge issue financially,” said Jonathon, “and a significant road safety issue especially for double-decker bus operators. The TCs are now being notified of every strike; as a company this year, we’ve taken on more cases of this than ever before. The focus has shifted onto it massively.”
The increasing pressured applied by Network Rail onto TCs has led to them taking a tougher stance on the issue – and, in turn, punishing drivers and their employers more severely. “It’s now effectively a licence-losing scenario,” said Jonathon. “Is that entirely fair? I don’t think so.” TCs now make it clear that a bridge strike can affect the ‘repute’ or ‘fitness’ of a business or driver, potentially leading to the revocation of their licences.
He explained that, should a bridge strike occur, TCs will look for evidence that the operator has done everything it can to reduce the likelihood of such an accident happening. This means reviewing training to cover the issue in greater detail, advised Jonathon, including measures such as:
• Making drivers aware of the risks involved;
• Implementing daily protocols to remind drivers of the height of their vehicles;
• Introducing adjustable height banners;
• Identifying known low bridges in the local area; and
• Using a sat-nav system designed for tall vehicles, with the correct height parameter entered.
One viewer asked whether there was such a thing as a bridge alarm, which would sound if the vehicle was approaching a bridge too low for it to pass under. Jonathon and another viewer confirmed that these were indeed available, and recommended them as another measure to prove to the TC that care has been taken to prevent a bridge strike.
Jonathon also pointed viewers in the direction of Network Rail’s ‘Prevention of bridge strikes’ guidance documents, which are available to download on the gov.uk website.
A different approach
Next, Jonathon briefed webinar viewers on government consultation on new draft guidance from the Senior TC relating to driver conduct hearings. “There has been an increase in the number of driver conduct hearings in the last few years,” he revealed. “There was a 30% increase in the action taken at these hearings from 2017 to 2018 as well, and the action taken was a third more serious. I believe this trend is going to continue this year.”
The Senior TC is proposing a complete redraft of the guidance and examples for driver conduct hearings, and Jonathon things the TCs are adopting a more ‘tariff-based’ approach “rather than the historic position of taking each case on its merit.” He added that things which would have disqualified a driver for a few days or weeks in the past are now disqualifying them for months in some cases, which may not be lawful.
He argued that sometimes the punishment for bridge strikes can be disproportionate. “Drivers will end up leaving the industry as a result of bridge strikes,” he said. “I heard recently about one driver who’d never had an accident in his career. He was driving a double-decker bus and hit a bridge that was unmarked; vandals had damaged the warning signs, rendering them useless. As he was unfamiliar with the route, he took a wrong turning, and didn’t realise the bridge was too low until it was too late. Despite this, he had his licence taken off him, which was very harsh in my view.”
Further complicating things is another government consultation, which seeks to introduce a package of rules that operators must adhere to when preparing for a Public Inquiry (PI). This increased complexity will almost certainly increase the financial impact a PI has on an operator, reckons Jonathon. “It currently costs an operator involved in a PI between £4,000 and £8,000, a big increase on five years ago. TCs want more now in terms of preparation. What’s that going to do? Likely quadruple that cost, making it even harder for operators to challenge the TCs themselves.”
He encouraged operators to ‘push back hard’ against the consultation, and added that the CPT is preparing a ‘robust rebuttal’ to it currently. “For those who believe PIs are only for weak operators – you are very wrong. Even the best operators get bridge strikes, so this consultation could affect anyone,” he concluded.
Employment and company structures
Laura Smith was next to give a presentation, and addressed questions on employment law as well as providing guidance on age discrimination and illegal working. She advised operators to read ACAS’s guidance on age discrimination, which she said was “well set-out and summarises the key points.”
Any new employment opportunities in a business must be offered to every staff member equally, she said, regardless of their age. The same applies to voluntary redundancy; age shouldn’t affect who it is offered to.
Laura also stressed the importance of using performance management; if someone is ‘too slow’ at their job, there has to be evidence to prove that is the case. “Like Jonathon said about bridge strikes, when it comes to dismissing someone you’ve got to be able to demonstrate that the paper trail is there and that you’ve gone through the proper process.”
Moving on to the subject of preventing illegal working, Laura highlighted a new, free online right to work checking service, a tool which should make life easier for employers. Regardless, she again emphasised the importance of having a paper trail to prove that the business has done everything in its power to ensure that its employees have the right to work in the UK. “It’s no use having expired right to work documentation,” she said. “It’s your responsibility to make sure it’s up-to-date, or you could be fined £20,000 for employing an illegal worker.”
Concluding the presentation was Brett Cooper, who gave an overview of the benefits of creating a holding company – another limited company created purely to buy and own shares in other limited companies. “The risk of losing assets is minimised if the trading company becomes insolvent,” he explained, adding that holding companies make diversifying a business safer and more efficient. “New ventures are ringfenced in their own limited companies,” he said, “minimising the risk if it doesn’t work out.”
The next Backhouse Jones webinar will take place on 9 October. For more information, visit backhousejones.co.uk
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