ARTICLE FIRST PUBLISHED IN UTILITY FLEET MAGAZINE MAY/JUNE 2018 ISSUE
Road transport lawyer Tim Ridyard from Ashtons Legal explains the importance of compliance by highlighting three hot topics: Driver licence checking; Emissions cheats and; Category B licences
Driver licence checking
Recent coverage of the appalling M1 minibus fatal crash (that led to two prison sentences of 14 years and 20 months) has led to debate about employers not being informed when their employee drivers have lost their driving licence. In this case one driver had lost his licence to drive a month prior to the accident. The employer had a regular licence checking system in place.
It is an offence for an individual or business to ‘cause’ or to ‘permit’ driving without the correct licence (and hence without insurance). It will not be regarded as ‘permitting’ if there is an adequate checking system in place.
Any business should be carrying out driving licence checks at regular intervals after first being employed. The DVLA now recommends three monthly interim checks. Employers must inform drivers that they will carry out regular checks and implement this. There is no automatic mechanism whereby DVLA informs a business that one of its drivers has lost the right to drive. It would mean at any given time DVLA being aware of every business a driver was working for. There is no plan for this.
The loss of the driving licence could happen in a number of ways:
Unfortunately, it may happen that an employee does not inform their employer that they have lost their driving licence. In theory, only daily checks of licences would guarantee any driver was entitled to drive on any given day. This would create a huge logistical issue for businesses and would this be a proportionate response to address the very small number of drivers who conceal information?
Regular checks diminish the risk and if such employees do fail to inform their employer then can be dealt with under employment disciplinary procedures. Ultimately, there may always be employees who fail to inform their employers of important matters and the only realistic approach is to prevent this as much as is reasonably practicable. If this method is adopted, then there will be protection for businesses that they have done everything to avoid unlicensed drivers going out onto the road.
A number of operators and transport managers have recently lost their licences and repute having been found to have been using cheat devices on their vehicles. A Channel 4 Dispatches investigation aired on 9 April reported on this recent trend: interference with lorries’ exhaust control systems that are in place to reduce emissions of nitrogen oxide (NOx) which are harmful to health.
Where an operator defeats or is able to bypass the normal emissions control system on a lorry the actual emissions may be several times greater than should be the case. In short, deliberate wrongdoing for personal gain directly affects emissions levels and thereby health.
In a recent case one Traffic Commissioner stated that there was in fact no difference between disabling the emissions systems on a lorry and fitting a cheat device, such as a magnet, onto a tachograph: both types of activity cause serious injury or death though in different ways, he said.
This scam, a criminal offence, can be carried out in a number of ways. One main method is to make the vehicle think that it is using the ‘AdBlue’ liquid when in fact it is not. If the AdBlue systems malfunction they are very costly to repair. Fitment of a small cheat device or emulator for a few hundred pounds can avoid the higher repair costs by shutting down the adBlue. To detect cheat devices a very close inspection of the vehicle has to be carried out, normally by the Driver & Vehicle Standards Agency (DVSA). Another method of defeating the emissions systems of a lorry is to hack into the vehicle using a laptop and special software. This is much more difficult to detect.
Operators who engage in such activity can expect to have their operator’s licence removed by a Traffic Commissioner. Astonishingly, no prosecutions appear to have been brought against persons for engaging in these criminal offences. The Government recently published proposals to make it an offence to supply a vehicle fitted with a device that defeats or by passes the emissions control system.
Drivers may say that are not aware that the vehicle they are driving is being used unlawfully, of course. This may not always be very plausible. In another recent case in which an AdBlue gauge never moved Traffic Commissioner Kevin Rooney said: “The operator didn’t notice that this truck never needed AdBlue. That is clear nonsense. He wilfully shut his eyes to the absolutely blindingly obvious”. The licence was revoked.
Category B driving licences: weight increase
Soon it may be possible to drive vans up to 4.25 tonnes maximum authorised mass (mam) on a Category B driving licence – but only if they are alternatively-fuelled. The Government announced on 28 March that it will proceed after consultation to seek a five-year derogation (relaxation) from the EU third Driving Licence Directive to allow this to happen. (Germany and France have already secured this for electric vehicles.) This may help businesses plan their fleet and vehicle acquisition to advance environmentally-friendly goods transport operations. There is no timetable announced for this as yet.
This is all part of the objective of increasing the uptake of low emission vehicles, the reduction in nitrogen dioxide emissions and the plan to make every car and van run with zero emissions by 2050.
A disadvantage of alternatively-fuelled vehicles is that their weight is greater than conventionally fuelled ones because of the technology. As a result, they can only lawfully carry a smaller load which in turn is a disincentive and commercial drawback to using cleaner technology.
This relaxation is planned only to apply to the following fuels/vehicles:
Operator’s licence: the Government has already taken steps to allow businesses to be exempt from the need for an operator’s licence for alternatively-fuelled goods vehicles up to 4.25 tonnes. From September 2018 new regulations come into force to implement this.
Driver CPC: these rules do not apply to Category B licences – so, when the Category B weight threshold is increased to 4.25 tonnes the driver will not need the DCPC qualification.
EU drivers’ rules: there is no exemption from this for goods vehicles operating from 3.5 tonnes mam.