AR Cook & Sons (Plant Hire), based in Maidstone, Kent, has won an appeal to postpone a suspension imposed by London and the South East traffic commissioner (TC) Nick Denton on the grounds that an immediate suspension would likely affect the firm’s, and its customers’, profit.
The Upper Tribunal found that as the operator’s work and cannot be subcontracted, as it involves the use of specialist vehicles and staff, a three-month deferment of the suspension will allow the company and its customers to put alternative arrangements in place.
The company admitted to DVSA examiners that it had not downloaded drivers’ digital cards for about two years, a public inquiry in October was told. Some, but not all, vehicle units had been downloaded.
The DVSA discovered that the company: did not have systems for downloading or analysing driver cards or vehicle tachograph units in place; did not have a system for ensuring action on drivers’ hours infringements; and did not have full systems for recording working time or storing downloaded data or printouts.
Over 15,000 missing kilometres between April and June 2014 were found when tachograph records were analysed.
In his written decision of 3 November 2014, the TC said he “just stopped short of revoking this licence” and suspended it from operating for two weeks from 29 November to 12 December 2014.
Its O-licence authorisation was also curtailed from 25 to 14 vehicles for an indefinite period.
Director Lauren Shoebridge was ordered to attend an operator licence management course, and the company ordered to undergo an independent audit of its systems for maintenance and drivers’ hours.
When appealing the decision, the operator said it would put it out of business, and claimed the TC failed to recognise that a number of movements identified as infringements fell within the highway maintenance exemption.
The appellant criticised the TC for failing to ask what effect a suspension would have on business. It claimed subcontracting work was not possible as it employed specialist railway-authorised staff for some contracts.
“Without such [evidence] we consider that the TC was unable properly to decide on the appropriate length of suspension and whether it should have been total,” said Judge Kenneth Mullan in the Upper Tribunal’s decision. He noted that all parties would incur significant losses if it was unable to fulfil its contractual obligations.
“The TC’s conclusions that road safety and fair competition have been severely compromised are entirely appropriate. As he observed, token action would send the wrong signal to the industry about the response to a serious failure to abide by drivers’ hours and tachograph rules,” he added.
The Upper Tribunal said the two-week suspension is to begin on 6 October and end on 19 October. The remainder of the TC’s decision stands.
Summing up: The suspension has been delayed to allow the operator to put alternative arrangements in place.
Year: 2016 | Body Type: Tractor unit | Registration: BJ16YZF | Mileage: 936,845 km | Category: Tractor units
