Financial standing levels rise for commercial vehicle operators

Following a drop in the value of the pound, standard operator licence holders will see the financial standing level rise from £7,850 to £7,950 for the first vehicle and from £4,350 to £4,400 for each additional vehicle on their operator licence.

Financial standing levels for restricted licence holders have been frozen again, staying at £3,100 for the first vehicle and £1,700 for each additional vehicle on the operator licence; however, it is anticipated that a consultation as to the financial levels on restricted licences will be held early next year.

It is not clear yet whether these levels will continue to be based upon the exchange rate between Sterling and the Euro after Britain leaves the EU, but given the levels have fluctuated by almost £2,000 over the last few years, perhaps the logical decision would be to consult with the industry and set a fair level which is acceptable for both the regulator and the operator.

For further information contact Joanne Witheford or Vikki Woodfine

New in-cab weekly rest rules come into force

As of today, the new weekly rest rules will be enforced nationwide by the DVSA as they crackdown on weekly rest taken outside of formal rest areas.

The new rules specifically concern drivers who take their full weekly rest periods in their cab in public lay-bys, on or close to public roads, on motorway slip roads or simply anywhere other than a service station or a truck stop.

Current rules

Article 8(6) and 8(8) of EU Regulation 561/2006, introduced in 2007, provides that:

  • in any two consecutive weeks, a driver shall take at least two regular weekly rest periods or one regular weekly rest period and one reduced weekly rest period of at least 24 hours;
  • however, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question. A weekly rest period shall start no later than the end of six 24-hour periods from the end of the previous weekly rest period;
  • where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle if it has suitable sleeping facilities for each driver and the vehicle is stationary.

In February 2017, however, European Court of Justice (ECJ) advocate general Evgeni Tanchev provided the opinion that drivers were in breach of the weekly rest rules if they take their weekly rest period in a vehicle’s cab.

Some countries, such as France, are enforcing this interpretation of the rule strongly and fines of up to €30,000 (£26,000) can be imposed if a driver is found sleeping in his cab at the side of the road.

The UK is enforcing the rule that a driver’s full weekly rest period is not taken in the cab of a vehicle through DVSA sanctions.

What are the sanctions?

From today, drivers and operators found in breach of the rules may face:

  • Financial penalty deposits (for non-UK drivers) or fixed penalty notices of £300;
  • Prohibitions on the driver until the full weekly rest is properly taken (drivers can be required to start their rest all over again); and
  • The reporting of operators to their licensing authorities, such as the Traffic Commissioners, including similar authorities in other EU states.

It is important to note that a daily rest and reduced weekly rest period can still be taken in the cab.

Easier said than done?

It is without doubt that the current infrastructure for drivers who wish to access suitable facilities of consistent standard is poor. Under EU Law, rest facilities should be located every 100km across the European road network by 2030, but what about now?

RHA chief executive, Richard Burnett, said: “Rest facilities for HGV drivers are scarce and in order to comply with their working hours they need somewhere safe and secure to rest. The authorities are duty bound to tackle this urgent problem“.

It is arguable that in some cases, the standard of a driver’s cab may be better than that of a cheap motel or B&B and so it is inevitable that some drivers and operators may ignore the provisions and risk the fine. Further, when considering profit margins in the industry are notoriously small, an operator who has spent money ensuring his drivers have the best specification of cab for taking their full weekly rest periods may be unwilling to then spend money ensuring their drivers’ accommodation is that of a high standard.

If you are issued with a prohibition notice/fixed penalty notice or wish for advice surrounding the weekly rest rules, contact Joanne Witheford or Vikki Woodfine.

Clandestine entrants – take action to avoid £4,000 penalty per entrant

With the crisis in Calais continuing, we discuss the ongoing risk of clandestine entrants illegally using commercial vehicles destined for the UK, the consequences for vehicles found to be carrying entrants and how both companies and drivers can take steps to secure their vehicles and minimise their risk of penalties.

Consequences for vehicles found to be carrying clandestine entrants

A HGV driver and his employer can each receive a penalty of up to £2,000 for each clandestine entrant found in the vehicle. The vehicle could also be detained if there are outstanding fines or the UK Border Force (UKBF) is concerned that the fine will not be paid on time.

As a company is jointly and severally liable for its drivers’ fines, operators could be exposed to a penalty of £4,000 per clandestine entrant. Penalties of £20-30,000 are not unusual.

Take preventative measures

To reduce exposure to fines, vehicle operators must take active steps by having effective systems in place to prevent people hiding in or on their vehicles.

Operators should:

  • Implement a clear system to prevent people hiding in and on their vehicles.
  • Produce a clandestine entrant policy including clear written instructions on the system.
  • Provide handbooks to drivers enclosing the clandestine entrant policy and UKBF guidance.
  • Provide drivers with security equipment to secure their vehicle, load and load space.
  • Provide adequate ongoing training to all drivers on how to prevent clandestine entrants and the application of security devices on vehicles.
  • Provide all drivers with vehicle security checklists for drivers to record the checks that they have carried out to prevent clandestine entrants.
  • Monitor drivers’ compliance with the clandestine entrant’s policy. Failure to comply with the clandestine entrant’s policy by drivers should lead to disciplinary action.

DWF’s Regulatory Team recommends operators join the UK Border Agency’s free accreditation scheme. The scheme is open to operators of any size or nationality who undertake journeys between mainland Europe and the United Kingdom. To qualify, an operator must show that it has an effective system to prevent it carrying clandestine entrants. It must also show that it takes all reasonable steps to ensure the system operates properly.

If an operator is accepted onto the scheme and clandestine entrants are subsequently discovered in its vehicles, a civil penalty will not be imposed if the operator is found to be operating in accordance with the scheme.

10 Steps to an effective system for drivers

The Home Office recommends that drivers follow a 10 step guide to avoid a penalty.

Conclusion

The risk to operators of clandestine entrants is one that is on the rise and is not a problem that is likely to be resolved anytime soon. With a potential fine for companies of £4k per entrant and entrants willing to risk their lives to enter the UK; both companies and drivers need to ensure they are complying with effective systems to minimise risk.

DWF’s Regulatory Team can:

  • Provide advice on preventative steps to protect your business.
  • Advise businesses on applying to the UK Border Force’s Accreditation Scheme.
  • Help with all aspects of objecting, appealing and reducing a penalty against you or your driver.

For further information please contact Joanne Witheford or Vikki Woodfine.

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Sentencing guidelines start to bite big corporates

In the wake of the £5m fine imposed on the owners of Alton Towers, regulatory expert Vikki Woodfine, writes for Lexis Nexis about huge health and safety fines becoming the new norm.

The last few months have seen a number of large fines for health and safety breaches. What are the fines that have been imposed?

Since the introduction of the new sentencing guidelines for health and safety offences in February 2016 we have seen some significant fines being handed out by the courts. The sentencing guidelines are truly starting to bite big corporates and the upward trend in penalties for health and safety breaches cannot be ignored. In September 2016 alone we have seen six fines being handed down in respect of health and safety offences that were in excess of £1m. That works out at more £1m fines per month than the previous rate of £1m fines per year—prior to the implementation of the new sentencing guidelines. For reference, that now gives a total of 16 £1m plus fines which have taken account of the new sentencing guidelines (including three cases from the week prior to the implementation of the new sentencing guidelines).
What do these cases tell us about how the courts are interpreting and imposing the Definitive Sentencing Guideline, which came into force in February 2016?

There has been a clear increase in the number of £1m fines since February 2016. These cases show us that there has been a shift in the landscape in health and safety sentencing and the courts are now more than willing to give sentences in the £1m plus range, even where a death has not occurred. Non-fatal incidents are attracting these high fines which is something that we have rarely previously seen.

This article was originally written for Lexis Nexis

DOWNLOAD A PDF OF THE FULL ARTICLE »

For further information contact Vikki Woodfine

Calais Crisis Continues

In a desperate attempt to reach the UK migrants have turned to extreme violence resulting in many lorry drivers being worried for their safety when on the roads in France.

Lorry drivers are being faced with the potential risk of being attacked with weapons and, in a more recent case, lorries being set on fire as migrants riot over the conditions and struggle to reach the UK.

This week the UK reached an agreement with the French government to build a “wall” to prevent migrants climbing onto lorries in Calais.

A four metre high wall which will be erected either side of the main road for 1km, is already under construction costing the UK authorities over £2million.

However, charities have expressed their concern that the wall will not prevent migrants but will consequently be a danger to them.  Yolaine Bernard, Vice President of the Salam Aid Organisation has told papers, “It’s not going to change a thing.  These people will still try and scale the wall and it will just result in more of them being injured.”

Lorry drivers themselves have said the new concrete wall will do little with Richard Burnett, Chief Executive of the Road Haulage Association stating that the wall is a waste of money and it will simply ‘shift the problem further down the road’.

The situation for both lorry drivers and migrants is dreadful and more needs to be done to prevent this Calais crisis from continuing.

What is your opinion on the ‘Great Wall of Calais’?

Tweet us at https://twitter.com/lorrylawyer to get involved.

Operation Stack lorry park consultations begin…

A six-week consultation to cover the design of the new M20 Stanford West lorry park started last Friday, 12th August.

The £250m park is being built as a solution to the chaos many drivers were faced with last summer on the M20 due to the disruption to cross-channel services.

The lorry park at Stanford West was the chosen site following a consultation between December 2015 – January 2016 despite many residents’ complaints of the sites impact to the surrounding area.

Highways England has attempted to reassure residents and businesses that it will do its best to minimise any impact to the area that the site may cause.

Project Director, Adrian Sheppard has said, “Following our consultation earlier this year we have been working hard to refine our plans and are now keen to hear what people think about these.  I encourage anyone who would like to understand more or ask questions to visit us at one of the public exhibitions we are holding.”

It is hoped that the Operation Stack lorry park will minimise the impact on the M20 and the regions roads by offering parking for up to 3,600 lorries during disruption.

What are your views on the Stanford West lorry park?

It is important that hauliers affected by Operation Stack use this opportunity to have their say, either directly or via their trade associations.

Details of the consultation will be available from 6am on Friday 12th August 2016 on the government’s consultation page or by searching “Management of Freight Through Kent” on the www.gov.uk website.

Tweet us at https://twitter.com/lorrylawyer to get involved.

Brexit: What next for the road transport industry?

On 24 June 2016 it was decided that UK would seek to exit the European Union (“EU”). Immediately following that decision, we saw David Cameron resign as Prime Minister, the FTSE 100 and pound plunge and commentary coming from Europe’s leaders talking of their shock and disappointment.

Now we must think about what this means for hauliers and where things go from here.

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Operators Beware – the application of the new sentencing guidelines

The new Sentencing Guidelines represent the biggest shake up to the Regulatory landscape in recent years, with fines up to 10 times higher (or more in some cases), than their previous levels. With respect to individuals we are expecting to see cases of imprisonment of directors and managers in cases where that would have been unheard of before.

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HSE to prosecute employer for Harrison Ford injury

Harrison Ford, better known as Hans Solo, sustained a broken leg when he was struck by a heavy metal door during the filming of Star Wars Episode VII: The Force Awakens. The accident happened in August 2014 at Pinewood Studios whilst the actor was filming a scene set inside the well-known intergalactic freighter, the Millennium Falcon.

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