A West Midlands operator and its transport manager faceda severe reprimand over drivers’ hours offences, but were given a reprieve accompanied by a strong warning over future non-compliance
A joint public inquiry (PI) was held on 21 March to consider a case involving West Midlands operator Bouden Travel Ltd and its transport manager Sophie Baugh. The case was heard at the office of the Traffic Commissioner (TC) for the West Midlands Traffic Area in Birmingham by TC Miles Dorrington, and the resultant decision published on 23 April.
Bouden Travel is the holder of a standard international public service vehicle operator’s licence (PD1138814), and following adverse findings, a number of sanctions were imposed by the TC. The operator’s licence was granted in July 2015 and in the period to 2023 it had received two written warnings from the Traffic Commissioner for adverse compliance events. Then on 4 May 2023, after a routine stop by the DVSA, it was established that two drivers had removed their digital tachograph card and carried on driving, which prompted a formal DVSA investigation that ultimately resulted in the operator and transport manager being called to PI.
Poor start
The DVSA was not present at the PI, but evidence from the DVSA consisted of a statement from traffic examiner Bateman, given at the original PI which was adjourned and reconvened on 21 March, and his supplemental statement. The operator and Ms Baugh were represented by solicitor Mr Oliver. Director Mr Adel Bouden and Transport Manager Sophie Baugh did not arrive until after the 1000hrs start time, meaning that the PI was unable to begin until 1035. Also present via Microsoft Teams was a driver formerly employed by the operator who had been called to a conjoined driver conduct hearing.
The TC expressed displeasure at the late start, and made it clear that he would determine whether that failure to attend a formal public inquiry on time amounted to a failure to co-operate with the Traffic Commissioner or was a matter that went to the good repute of the operator and/or transport manager.
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Evidence
The evidence of the DVSA was not materially challenged by the operator or the transport manager (TM). The TC found the original evidence from Traffic Examiner (TE) Bateman to be credible, cogent and highly persuasive and accepted it as such; all of the allegations in his statement were more likely than not to have been correct, he believed, and as a result were found to be proven.
The TC accepted TE Bateman’s statement that “if the company were to provide clear, concise and acceptable explanations with evidence on the missing mileage periods, my only concern would be the high rate of infringements for ‘Exceeding 4.5hrs’ and ‘Daily Rest’.”
However, TE Bateman noted: “There were five more periods where vehicles had been driven with no driver card inserted into the vehicles tachograph units, but as there is no annotation for these periods on the company’s missing mileage period, and I have been offered no explanation as to why these vehicles were driven with no driver card, I cannot conclude that the drivers for these vehicles did or did not have valid reasons for them to be driving without a driver card inserted.”
Ineffective
The transport manager had no explanation for the allegations, which the TC said was ‘truly remarkable given she was trying to satisfy me that she had been effective as a transport manager, particularly after the DVSA stop on 4 May 2023 when two drivers were alleged to have taken their tachograph cards out of the tachograph machine and then carried on driving’; those two allegations were found to be proven on the balance of probabilities in the two driver conduct hearings conjoined to the public inquiry.
More remarkable, said the TC, was that the five allegations lacked explanation from the TM because, had she been effective in her role, the incidents would have already have been spotted before TE Bateman wrote his report, and they should have been spotted when the vehicle unit download data was cross referenced to the drivers’ digital cards. “To have no explanation to those five serious allegations in a public inquiry is totally unacceptable,”
the TC found, concluding that it was ‘more likely than not’ that on all five occasions the driver drove an in-scope vehicle without a driver card inserted.
Disciplinary matter
The TC expected to see disciplinary letters for the drivers from the May 2023 DVSA investigation and for the five additional matters. The operator provided copies of only two. One recorded an outcome of no warning and no further action, and the other recorded a first written warning.
“There is never, ever, a lawful excuse for a professional driver to remove their digital tachograph card from the digital tachograph machine and to then carry on driving an in-scope vehicle,” the TC said. “By taking that card out and then driving it is, and would be, obvious to any professional driver that that driving will not be recorded on their tachograph card. It is, or would be, obvious to any professional driver that by not recording their driving a false record will be created by the failure to record what is legally required to be recorded.
“It is a conscious act to take the digital tachograph card out of the digital tachograph machine. It requires intent, i.e. knowledge of what you are doing. There can then be no excuse from someone who then drives the vehicle to say that they ‘forgot’ that the card was not inserted because all digital tachograph machines have a flashing alert to warn the driver if no tachograph card is inserted into the machine.
“Pulling a digital tachograph card and then carrying on driving is dishonest, it is a criminal offence and it is there to hide duty time that should be recorded which is done in almost 100% of cases to conceal an offence that would otherwise be committed were the card to remain in the machine. Driving without a tachograph card inserted puts road safety and lives at risk.”
The TC said the disciplinary responses, or lack thereof, was ‘beyond comprehension.’ “I cannot think of a more serious breach of the drivers hours and tachograph laws by a professional driver than pulling a card and then carrying on with driving. And yet this operator has taken no, or no serious, disciplinary action,” he said. “Pulling a card/creating a false record is prima facie an act of gross misconduct. The outcome of finding of gross misconduct should be summary dismissal, save in the most exceptional of circumstances. It should never be ‘no warning will be issued, and no further action will be taken’.
The TC found therefore that the operator had not taken the issue of pulling digital cards seriously, a finding that had a significant adverse bearing on the operator’s and the transport manager’s good repute.
TM Baugh said the transgressions had occurred as a result of drivers planning their own routes, an explanation which the TC did not accept. Ensuring drivers comply with the law in regards to driving hours and the requirement to record their duty time is a key function of a transport manager. Sophie Baugh qualified as a transport manager several years ago and has been specified on this operator’s licence for some time, the TC found, and thus was expected to be conversant with the requirements.
Director’s responsibility
The TC further concluded that sole director Adel Bouden had failed to exercise effective management control of his transport manager or the general undertakings on the operator’s licence. Had he done so then after the DVSA stop on 4 May 2023 the serial and serious offending by drivers would not have occurred, the TC believed.
Mr Bouden later stated that there were personal reasons why things may have slipped. Given the transport business remained open with business as normal, and given that his office had not been notified of any reason or event that might interfere with compliance, the TC was reluctant to hear about it, but Mr Bouden insisted and said that as a result of circumstances, he went to Tunisia for four months. Mr Bouden’s solicitor appeared unaware, and the TC allowed a short break for instructions to be taken. Upon reconvening, his solicitor stated that Mr Bouden had ‘dropped himself in a hole’ and tried and explain what had happened.
However, TC Dorrington found that the reality was that he had not been present in the UK for four months, and no one else was acting as a de facto director in his absence. He therefore could not exercise effective management control of the transport business, nor be physically present to inspect vehicles, the maintenance facilities, do gate checks, or to speak to drivers. In addition, the TC pointed out, his absence was not communicated to the TC’s office when it should have been.
Self-employed drivers
Around 20% of the operator’s workforce was self-employed drivers at the time of the DVSA investigation according to Mr Bouden. Despite being put on notice of this, and what the TC described as ‘clear unfair competition,’ and despite the lack of control of those drivers, the TC was told that as at the date of the PI there were still two self-employed drivers working for the operator.
The Upper Tribunal dealt with the issue of self-employed drivers in the appeal case of Bridgestep Limited in 2019, a case widely reported in the trade press and through industry trade bodies at the time. The TC deemed that it was more likely than not to be known to the HGV and PSV industry at large since its publication.
Mr Bouden stated that self-employed drivers were contracted via limited companies that those drivers had set up for themselves and it was under those limited companies that the drivers were employed. The only contractual arrangement with the operator therefore was a contract between the operator and the limited company set up for each driver, and as a result there was no contractual arrangement between the operator and the driver. That situation was found to be exactly what the Upper Tribunal dealt with in the Bridgestep appeal, where it upheld the revocation of the operator’s licence on the grounds of unfair commercial advantage, and because there was no contract with the drivers the operator could not instruct a driver to do anything that the driver did not want to do, meaning the operator could not ensure that the general undertakings of its operator’s licence were being fulfilled.
The TC dismissed the idea that there was a shortage of drivers prepared to work on a PAYE basis, creating a need to use self-employed drivers in such a manner.
Adverse findings
The TC concluded that the operator’s and transport manager’s failure to arrive at the public inquiry on time and when there was no reasonable excuse given amounted to unacceptable conduct. “It was rude, it was disrespectful to myself as the Traffic Commissioner,” he said. “It is misconduct from which I have made an adverse determination in relation to Sophie Baugh’s good repute as a transport manager. It is misconduct from which I have made an adverse determination in relation to this operator’s good repute.”
However, in weighing up the facts, TC Dorrington did note some positives, though some were qualified. He found that the operator had begun implementing a new systems in relation to drivers hours and tachograph compliance before the DVSA stop on 4 May 2023, though qualified this by the fact that serious and serial non-compliance continued through into 2024, meaning only limited credit could be given. “It does not matter what your system is, it is what comes out from it that counts,” he said. “Here the new system did not result in compliance or the avoidance of serious offending by drivers and it did not deal with those drivers found to have committed serious or serial breaches via robust disciplinary action.”
He also gave credit for the fact that maintenance compliance appeared to be satisfactory overall, and noted that Sophie Baugh had recently completed a course of transport manager CPC refresher training. Further credit was given for the heavy investment in technology to allow quicker checks to be undertaken on drivers and their compliance with drivers’ hours and tachograph laws and rules.
The TC recognised that the operator and the transport manager had fully co-operated with the DSVA at every touch point, though noted that the operator should have been able to provide explanations to all of the DVSA’s adverse findings upon receipt of the report through its digital tachograph card and vehicle unit analysis, but was unable to. The operator promised to undertake a full audit in the future. The TC gave credit for that, but said it should have been done before the PI.
Future promises
Both the operator and the transport manager promised to be fully compliant in the future; neither thought they were setting themselves up to fail despite the TC making it clear that the DSVA will be paying an unannounced follow up visit in the near future. Credit was given for the promises made, and for the fact that this ws the operator’s first public inquiry, though it had received two previous warnings and had not had a clear five-year period without some intervention by the Traffic Commissioner.
It was noted too that the operator had already begun taking steps to limit its transport contracts and obligations to take account of the likely regulatory action that the TC would take at the PI, for which TC Dorrington gave credit for the realisation on the part of the operator that things had to change.
Nonetheless, the TC was able to conclude that the balance of favour was firmly towards the negatives of the case, which he found fell into the category of ‘serious.’
Considering the promises made by the operator and transport manager that there would be full compliance going forward, and asking the question of whether the operator could be trusted in future, the TC said he had decided to trust them both one last time and permitted the operator to retain its good repute, which was marked as ‘very badly tarnished but not lost.’
The TC concluded that as TM, Sophie Baugh had allowed road safety to be put at risk on her watch and had failed to be effective in her statutory role. “Only as a result of her recent training, the promises to get things right and the knowledge that if she fails again, she will not be given a second chance have I let her keep her good repute as a transport manager,” he said, adding that her good repute as a transport manager is now marked as ‘severely tarnished and hanging by the thinnest of threads.’ She was given a ‘first and final’ written warning that will remain on her file for five years.
He warned that if she were to find herself back at a further public inquiry in the next five years where an adverse determination is made resulting in the loss of her good repute as a transport manager, then the TC would consider a mandatory disqualification of at least three years.
Turning to the operator, the TC found that the proportionate regulatory action was a permanent variation of the conditions on the operator’s licence, taking effect from 2359 hours on 26 April 2024, reducing its authorisation from 18 vehicles to 14. He added that no future variation application to increase authorisation will be considered unless it is accompanied by satisfactory a drivers’ hours, tachograph, missing mileage and working time compliance audit from a competent, accredited and independent provider.
Stern conclusions
“I need to know that this operator is able to operate a fully compliant fleet of vehicles before I will allow it to return to its previous licence authority,” TC Dorrington said. “A temporary (time limited) reduction in vehicle authorisation would not give me that confidence as I would not know that the operator was fully compliant at the point in time that its authorisation was automatically returned.
“A permanent variation of the conditions is also required so that a sufficient marker is placed on this operator’s file so show just how close it had come to losing its operator’s licence. A permanent
variation of the conditions is also required so that the right message goes out to well informed members of the industry to show that robust action will always be taken in this jurisdiction when serious and/or serial offending on the watch of the operator and/or transport manager is still taking place months after a DVSA investigation has brought the problems to the operator’s/transport manager’s attention.”
In addition, the operator offered the specific undertaking that “the Office of the Traffic Commissioner in Birmingham will have received original or certified/authenticated bank statements for the complete months of July, August and September 2024 no later than 30 October 2024. No reminders will be sent to the operator and no excuses that correspondence was lost/delayed in the post will be accepted. If these documents are not received on time, or if they do not demonstrate the appropriate financial standing required for the operator’s licence authorisation, then the in-chambers revocation process will be started.”
At the time of the PI, the operator had 15 licence discs issued to it. It was informed that the surplus disc must be received at the Office of the Traffic Commissioner in Birmingham no later than 1400hrs on 8 May 2024.
Furthermore, the TC requested a further DVSA investigation at some point in the near future, with the caveat that if the DVSA investigation and/or any audit supplied by the operator is marked as anything less than ‘satisfactory’ then the operator and transport manager will be called back to PI.
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