Expert Legal Advisers to the Road Transport
Industry for over 30 Years

BREXIT – How will Article 50 affect the Transport Sector?

The UK government has yet to decide exactly when the UK will part company with the EU and the basis upon which they do so (and whether or not a ‘so-called deal’ is actually done) is still a long way down the road.

Of course, while politicians debate the pros and cons of a second referendum (including a Scottish independence referendum, it would seem) and pundits talk about the effect of Brexit on the markets, commercial vehicle operators have to get on with running their businesses.

The three key pinch points for operators are exactly the same today as they were five years ago, namely (1) regulation, (2) cost base and margins, and (3) access to labour.

Regulation:

Lawyers and commentators may be interested in regulation – will leaving the EU result in changes to the rules of the road that will actually affect what operators and drivers are allowed to do? – and the pre-Brexit vote took as one of its major themes the effect on the UK of endless EU Regulation being foisted upon UK citizens. But, in reality, meaningful changes in regulation post-Brexit are highly unlikely. There is no political appetite to relax the drivers’ hours rules and in any event transport will not be top of the Prime Minister’s list of priorities.

Mrs. May has promised to serve formal notice of Brexit by the end of this month (March), but the momentous nature of the decision, both politically and legally has made the route to that action rather tortuous and it is still not clear when the UK government will be able to “press the button”, although the vote on 13th March has clarified that Mrs. May now has the powers to do so.

So if regulation is unlikely to be affected (at least in the next five years or so) what should operators be focusing upon?

Cost Base & Margins

Operators are going to feel the real impact of Brexit in their pockets. The buying power of the pound, the cost of diesel (and the degree to which that cost is predictable and capable of being planned for) and the margins that are available.

On the PSV side, operators reliant upon government funding (especially for home to school transport, and the endemic short term re-tendering required of them by Councils that are themselves having their budgets squeezed) are facing cut-throat competition and the options to diversify and/or find ways to make this work commercially viable are priorities that are much closer to home and need immediate attention.

If a devalued sterling cuts an operator’s profits to the bone either because orders for services shrink or because the prices operators can charge come under a continuing suffocating pressure or both, it will be small consolation to be told that an already complex and demanding regulatory regime is unlikely to be tightened.

Access to Labour (and transitional Arrangements)

Whatever the political pressures that the Brexit vote imposes on the free movement of labour, Brexit means ‘control’. The (unhelpfully simplistic) assumption peddled in the media is that those in favour of border control seek fewer immigrants every year.

But control means exactly what it says, and those businesses which need non-UK workers to make up their numbers will be able to get them, since there is no logical rationale for refusing entry to migrants who have valuable skills and jobs to go to, and no reason to think that the rules which currently apply to non-UK residents who live outside the EU (or something very like them) will not be extended.

That said, anyone already established in the UK pre-Brexit will likely receive additional protection in any event, so operators that already rely upon EU residents to make up their numbers can be confident that they are not going to face a forced exodus, and empty driving seats.

What is Our View?

We do not expect Brexit to result in an overhaul of the core set of rules that regulate commercial road transport (HGV and PSV).

What is likely is that the free movement of labour will be curbed, if not fully controlled. Foreign EU nationals that have established jobs (especially PAYE) with UK operators will likely receive a measure of protection, and in turn their UK employers will have an advantage, so now is the time to be thinking about whether the recruitment of EU nationals makes sense, before the rules change.

It follows that for any operators who rely upon non-UK resident EU drivers now is the perfect time to be reviewing the systems and records in place to ensure that such drivers are properly employed, properly inducted and properly supervised including making sure that all the necessary driving licence and Driver CPC checks have been carried out and that appropriate records of these checks are held on file.

Looking more widely at the economic horizon, the challenges for UK commercial vehicle operators remains largely unchanged in the sense that the core risks are a loss of commercial viability and threats to the operator’s licences upon which commercial vehicle businesses depend.

Adopting a maritime analogy, a sailor cannot control the weather (albeit that an eye on forecasting makes perfect sense and sometimes one can chose not to put to sea), but the seaworthiness of the boat is a different matter altogether. A compliance operation, properly run, with good systems that are accurately recorded, remains a lasting protection against everything that threatens if vehicles are unsafe and their drivers poorly supervised.

If you would like to talk through ways in which you can try to future-proof your business ahead of Article 50, then call us now on 01279 818280 or click here to send an email.

Double Penalties for Motorists Caught Using Mobile Phones

Secretary of State for Transport, Chris Grayling has warned that under measures which came into force on 1st March 2017, motorists will face losing their licence if they are caught using their phone whilst driving.

Motorists using a phone while driving will receive six points on their licence and a £200 fine – up from the previous three points and £100 penalty. Drivers who are caught using their mobile phone twice, or accruing 12 points on their licence will now face magistrates’ court, being disqualified and fines of up to £1,000 (unless they can show that a ban would cause them ‘exceptional hardship’).

Drivers who are caught within two years of passing their test risk having their licence revoked and for lorry or bus drivers the penalties risk being even worse following review by their traffic commissioners.

Transport Secretary Chris Grayling said “our message is simple and clear: do not get distracted by a mobile phone while driving. It may seem innocent, but holding and using your phone at the wheel risks serious injury and even death to yourself and other road users. Doubling penalties will act as a strong deterrent to motorists tempted to pick up their phone while driving and will also mean repeat offenders could find themselves banned from our roads if they are caught twice.”

Studies have shown that talking on a hand-held mobile phone poses a risk four times greater than that posed by undistracted drivers. That is on a par with drink driving. Another study by Virginia Tech Transportation Institute found that texting while driving conferred a risk of collision 23 times greater than driving undistracted.

The increase in penalties follows a consultation process by the Department of Transport in 2016 which favoured almost unanimous support for greater penalties. The Ministry of Justice has recently finished a consultation on increasing the maximum sentence for causing death by dangerous driving from 14 years to life imprisonment in an additional crackdown on reckless drivers. It follows on from high profile accidents such as the case against Keith Mees who was jailed in December 2016 for six years after using his mobile phone to browse Facebook whilst driving his 38-tonne HGV lorry on the M271 near Southampton. He ploughed into the back of slow traffic causing two fatalities.

So what is this all likely to mean in practice?

First, the Government’s move to increase the level of penalties raises the profile of this type of offence, and the criminal courts and Traffic Commissioners will be bound to take note.

Second, we have increased clarification from the government that using a hand held mobile phone (to make or receive calls or text messges, or to check social media/emails etc.) whilst stopped in traffic or at traffic lights is illegal – and the legal test, is not a question of what the driver may consider to be ‘safe’.

Third, drivers may listen to music or podcasts on a smart phone, but only on a ‘hands free’ basis.

Fourth, there is no ‘approval’ of drivers using their phones legally per se. The law on careless and dangerous driving remains in place, and being distracted while making a telephone call itself legally (and as a result driving carelessly or dangerously) is unaffected by these changes (as above).

If you would like further clarification on this area or advice on transport law issues in general, then call us now on 01279 818280 or click here to send an email.

Supreme Court Rules on Wheelchair Access, but are things any clearer?

On 18 January 2017 the Supreme Court of England and Wales announced its decision in the dispute over wheelchair access on buses which has been going since 2012. The ruling that “bus drivers must try to persuade other passengers to make room for wheelchair users” has been heralded as a landmark victory by both sides with bus operators welcoming the Court’s clarification and guidance, and disability campaigners highlighting Mr. Paulley’s victory (although the original decision to allow him compensation was not upheld).

The decision suggests that drivers may be justified in delaying a journey’s progress “with a view to pressurising or shaming recalcitrant non-wheelchair users to move” but many readers may also be aware of the Wakefield case in which, a few days after the decision in Mr. Paulley’s case was published, a wheelchair user (Kirsty Shepherd) was denied access to a bus when the wheelchair user space was occupied. In the ‘real world’ therefore, the jury is still out in determining what effect the decision in Mr. Paulley’s case will actually have and it may be that Parliment will need to consider legislation to clarify the legal position on both sides.

Mr. Paulley’s case:

The case of FirstGroup Plc v. Doug Paulley arose when Mr. Paulley, a wheelchair user living in the North East of England, attempted to board the 9.40 bus (being operated by FirstGroup) to Leeds. The space that is normally allocated for the use of wheelchair users was occupied by a lady with a sleeping child in a pushchair.

A notice was present on the bus, which stated “Please give up this space for a wheelchair user”. At the point when Mr. Paulley attempted to board the bus the driver requested that the lady fold down the pushchair and move from the space. The lady refused to move. As a result of this refusal Mr. Paulley was not allowed to board the bus and so had to wait for the next one with the result that his journey was delayed.

The Road to the Supreme Court:

Mr. Paulley issued proceedings against FirstGroup for unlawful discrimination on the grounds of his disability. His claim was successful at trial and he was awarded £5,500.00 in compensation.

FirstGroup appealed against this decision successfully and persuaded the Court of Appeal (in a unanimous decision) that FirstGroup was not required by law to force one passenger to make way for another (even in the event of a disability) and the company’s ‘provision criterion or practice’ (“PCP”) did make sufficient reasonable adjustment so that Mr. Paulley was not unfairly disadvantaged.

Mr. Paulley then appealed to the Supreme Court where his case was considered by seven Lord Justices including the President (Lord Justice Neuberger) and the Deputy President (Lady Justice Hale).

Why did the Supreme Court rule in Mr. Paulley’s favour on the main issue?

Readers will likely know that the Supreme Court judges unanimously decided to allow Mr. Paulley’s appeal on the main issue and ruled that FirstGroup’s PCP requiring a driver simply to request a non-wheelchair user to vacate the space that is normally reserved for a wheelchair user did not go far enough.

The question that operators will be asking themselves is ‘what then does the court require of us in terms of a policy?’

This is how Lord Justice Neuberger sought to answer this question –

“A driver may form the view that a non-wheelchair user is reasonable in refusing to move from the space. If the driver considers that that is so, or even probably so, then it would not, at least normally, be unreasonable for any request to move not to be taken further. However, where the driver concludes that the non-wheelchair user’s refusal is unreasonable, it seems to me that it would be unjustifiable for a bus-operating company to have a policy which does not require some further step of the bus driver in any circumstances. In particular, where there is some other place on the bus to which a non-wheelchair user could move, I cannot see why a driver should not be expected to rephrase any polite request as a requirement, and, if that does not work and especially if the bus is ahead of schedule, why the driver should not be expected to consider whether there was any reason why the bus should not stop for a few minutes with a view to pressurising or shaming the recalcitrant non-wheelchair user to move.”

And he went on to say –

“The very fact that, under FirstGroup’s current PCP… drivers were expected to request a non-wheelchair user to vacate a space needed by a wheelchair user, at least if there is a place for the non-wheelchair user to move to on the bus, demonstrates that drivers can be expected to show a degree of initiative – and to see whether or not there are spare places on the bus. I therefore find it hard to see how it could be unreasonable to expect FirstGroup to train its drivers to do a bit more, when appropriate, if and when an initial request is not complied with.”

How Should Operators Respond to this Ruling?

The two areas that require attention from operators flow directly from the Supreme Court’s decision:

Firstly operators should be reviewing their written policies to ensure that what those policies say dovetails with the Supreme Court’s decision.
Secondly, operators will need to look at the training that they provide to drivers and the steps that they require drivers to take in order to seek to resolve difficulties if and when they arise with non-wheelchair users who refuse to move from designated wheelchair spaces to make room for a wheelchair user.

Wording in the Operator’s Written Policy

Making revised policies work ‘on the ground’ is the real challenge. Relying upon drivers to apply their initiative is common sense and perfectly reasonable (and something most drivers do anyway), but making sure that an operator’s policy is applied fairly and consistently by all its drivers will likely prove easier said than done and it will not happen by accident.

One solution would be for operators to draw up a checklist detailing the points that a driver should consider and including the assessment that a driver makes before deciding what action, if any, to take.

A reasoned decision based on sound criteria (the reason(s) why a person refuses to move, the availability of alternative space on the vehicle for the non-wheelchair user(s), the language that has been used to try to persuade the non-wheelchair user(s) to move, and the degree to which the vehicle is ‘ahead of schedule’ and therefore how much time is available to try to resolve the situation – always being mindful of the penalties for late running and the potential tension between spending time resolving these types of issues and risking a failure to keep up with a service timetable) can all be included in the checklist and drafted in such a way that the driver could make a record quickly of all such incidents so that a ‘reasoned’ decisioin is taken and noted down.

The operator’s policy would no doubt require the driver to hand in all such records when returning to base, probably with a view to discussing the incident with the traffic office and perhaps reviewing (or at least retaining) any CCTV in case of follow up.

If having read this article you would like some advise on this subject then give us a call on 01279 818280 or click here to send an email.

Article first appeared in I-Croner. Copyright Richard Pelly February 2017

HGV Price Fixing Cartel – Could YOU Get Some Money Back?

In July 2016, MAN, Volvo/Renault, Daimler, Iveco and DAF admitted to participating in an illegal price fixing cartel which operated to fix prices between 1997 and 2011. Scania is the target of an ongoing investigation.

MAN ‘blew the whistle’ and in return for doing so escaped liability for the criminal penalty that the European Commission imposed on the other cartel members of 2.93BN Euros. The cartel members who were penalised admitted their involvement in return for a 10% reduction to their fine(s). The effect of the EC’s decision and the admissions of the cartel members is that it will be all but impossible for the manufacturers to deny liability.

As such it is very likely that operators who purchased or leased HGVs over 6 tonnes between 1997 and 2011 from the cartel members (including MAN) will have a claim for financial loss including interest at 8% per annum. The overcharging is estimated to be in the region of 10% – 25% of the list price per vehicle.

At this stage the only admitted price fixing concerns HGVs but it seems at least possible (if not likely) that sooner or later coach and bus price fixing will come to light.

If you would like to investigate further whether you might have a claim and get money back for your business then call us now on 01279 818280 or click here to fill in a contact form. At Pellys Transport & Regulatory Law we have specialised in acting for commercial vehicle operators for the last 30+ years including acting for operators in commercial litigation, so don’t delay pick up the phone now, or send us an email and let us see if we can get you some of your money back.