O-licence compliance: how operators can get caught out
Clare Benger, director of Regulatory at law firm Schofield Sweeney, highlights some common compliance failures, the potential consequences of failing to meet O-licence obligations, and the practical steps businesses can take
Few operators set out to deliberately breach the terms of their operator’s licence. More often, compliance failures develop gradually as commercial pressures, staffing issues and day-to-day operational demands move attention away from regulatory responsibilities.
Whilst every operation is different and pressures vary, there are several compliance failures that we, as legal advisors, see companies make time and again, potentially leading to serious regulatory action by the traffic commissioner (TC).
One compliance failure that often arises is not updating the TC of ‘general changes’ to the business. Something that can be easily avoided with better planning and awareness, these changes include updates of any convictions, a change of correspondence address and a change of transport manager.
Another update we see missed frequently is a change of directors or a change of control in the business (as a result of a share sale). These notifications are often missed because directors may not appreciate that they need to be made, while transport managers may be unaware that these changes have even taken place. It is critical in a transport business to keep your transport manager in the loop, for every business change.
Another area where many companies fall short is failing to properly analyse and then escalate issues identified through tachograph data. In our experience, we’ve seen many cases where operators have failed to deal with driver infringements that have been flagged, leading to relatively minor compliance issues developing into more serious concerns.
Analysing and addressing infringements promptly can help businesses to avoid regulatory action, uncovering whether drivers need additional training to understand where they’ve gone wrong when taking their breaks or rest, or whether they are choosing to ignore the rules. If the latter applies, operators may need to take formal action through the company’s disciplinary process, progressing from formal warnings through to dismissal where required. The excellent tachograph analysis software available still requires human input. Simply filing away the paperwork is insufficient.
Similarly, we often see operators failing to analyse maintenance documents such as PMI reports alongside driver defect reporting, and double checking to ensure that the maintenance provider has done what they need to (adhering to the Guide to Maintaining Roadworthiness’ best practice; giving you the RBT print out and checking how the RBT was carried out; have reported defects been repaired and so on). Has the PMI raised issues that ought to have been spotted by a driver? If so, you should address this with the driver. Such basic omissions can have detrimental consequences, yet, with better planning and management, they can be completely avoided. Operators need to have complete control and oversight of their fleet – merely collecting paperwork without reviewing and acting upon it is insufficient.
Document retention is another area where operators are frequently exposed to potential compliance breaches. This is often down to ineffective administrative systems resulting in documents not being retained for the required time periods or stored in a way that does not make them readily accessible when needed. Without accurate and complete records, operators can quickly find themselves unable to demonstrate compliance to the TC or DVSA.
Unfortunately, these failures are a reflection on the repute or fitness of the business and its directors and any transport manager. They can be serious and often career or business ending. Licence revocation, suspension, curtailment and formal warnings are all very real possibilities, as is the risk of reputational damage. The TC has the power, too, to disqualify directors from being a director of a transport undertaking in the future (on revocation) for an indefinite time period. There is also a risk that the TC may refer matters where they consider that there has been criminal wrongdoing back to the DVSA or the Police who could then choose to prosecute in the criminal courts.
What is apparent is that many of these failings are entirely preventable. In many cases, they stem not from deliberate non-compliance but from a lack of understanding of the wider operator licensing regime, inadequate systems or a failure to challenge existing processes. We frequently see this with restricted operator’s licence holders in particular – the directors are responsible for the operation but may not have the background in transport to understand the regulatory requirements. In spite of this, it remains their responsibility, and ignorance is not an excuse that would be accepted by the TC.
There are a number of practical steps that businesses can take to avoid the occurrence of regulatory failure.
The first is to ensure that staff and directors are adequately trained. Drivers should complete the relevant CPC courses, receive training on company systems and procedures and attendance should be fully documented. Records should be retained and refresher training delivered regularly to ensure knowledge remains up to date. Drivers should feel able to raise issues with their vehicles, knowing that they will be rectified promptly. They should be supported to work within the law, and without exceeding driving or working time.
Secondly, organisations must ensure that their systems and processes are thorough and robust. Compliance documentation should be reviewed and analysed rather than simply filed away, while transport managers and drivers should be regularly monitored by management to ensure procedures are being adhered to. Independent audits by a reputable transport consultant can also provide valuable reassurance and identify weaknesses before they become regulatory issues.
If directors don’t fully understand the transport side of the business, they should take an Operator’s Licence Awareness Training (OLAT) Course with a reputable provider. A greater understanding of the operator licensing regime will help ensure compliance remains a board-level priority rather than an afterthought. Board meetings should involve the transport team, so that directors receive frequent updates about that side of the business.
Where issues do arise, seek legal advice as early as possible. Time and time again we see operators burying their heads in the sand when problems arise. Matters should be dealt with promptly and effectively with specialist advice sought where necessary. Specialist lawyers can help operators understand their position, engage effectively with the TC or DVSA and, where necessary, assist with drafting correspondence and developing an appropriate strategy.
Ultimately, operator’s licence compliance requires continuous review and a proactive approach from directors, transport managers and drivers alike. An operator that invests in strong systems, regular training and early intervention will not only reduce their regulatory risk but also build more resilient, efficient and professionally managed transport operations.
