Enforcement and PenaltiesMoving on - the Future
Legislation in essence is a set of rules/regulations designed to provide a level playing field; break any of those rules and expect to be penalised for your trouble. As far as the rules relating to EC/AETR Rules and/or Tachograph use in general, the penalty for any infringement (blatant or otherwise) are severe.
Although we've placed this subject within this section, the undermentioned information has as much bearing on operators responsibilities to their driver workforce and also to drivers carrying out their roles correctly in respect of tachograph use and the rules that make up their roles, be they Domestic, Aetr or EC hours rules.
- Enforcement Powers and Sanctions
- Infringement of Domestic drivers' hours rules
- Infringement of the EU drivers' hours rules
- EU rules - co-liability
- Penalties for infringement of drivers' hours rules in Great Britain
- Fixed Penalties and deposits
Enforcement Powers and Sanctions
Powers - Legislation has provided authorised VOSA examiners with powers that include:
- the power to inspect vehicles;
- the power to prohibit and direct vehicles;
- powers relating to the investigation of possible breaches of regulations; and
- the power to instigate, conduct and appear in proceedings at a magistrates' court.
Sanctions - Action taken against drivers' hours and tachograph rules infringements is largely determined by legislation, and includes the following:
Minor infringements that appear to enforcement staff to have been committed either accidentally or due to the inexperience of the driver/operator and are isolated instances may be dealt with by means of a verbal warning. This will include a clarification of the infringement and an explanation of the consequences of continued infringement.
Offence rectification notices
These may be issued to operators for a number of infringements not related to safety, and give them 21 days to carry out a rectification of the shortcoming, otherwise prosecution will be considered.
Many drivers' hours and tachograph rules infringements attract a prohibition. A prohibition is not strictly a 'sanction', rather an enforcement tool to remove an immediate threat to road safety. When issued, driving of the vehicle is prohibited for either a specified or an unspecified period until the conditions stated on the prohibition note are satisfied. Where the prohibition is issued for an unspecified period, a note indicating the removal of the prohibition must be issued before use of the vehicle is permitted. In addition to attracting a prohibition, the matter will be considered for prosecution.
If it is considered to be in the public interest, more serious infringements are considered for prosecution, either against the driver, the operator or other undertakings, or against all of them. (See also EU rules: EU rules - co-liability)
Referral to the Traffic Commissioner
Where the driver is the holder of a vocational licence and/or the operator is the holder of an operator's licence, enforcement staff may report infringements by either the driver or the operator to the Traffic Commissioner instead of, or as well as, prosecution. This may occur when enforcement staff believe that the matter under consideration brings into doubt the repute of the driver/operator and subsequently call on the Traffic Commissioner to decide whether any administrative action should be taken against their licences.
Infringement of Domestic drivers' hours rules
Where an infringement of the domestic drivers' hours rules occurs, the law protects from conviction in court those drivers who can prove that, because of unforeseen difficulties, they were unavoidably delayed in finishing a journey and breached the rules. It also protects employers if any driver was involved in other driving jobs that the employer could not have known about.
Infringement of the EU drivers' hours rules
The law protects from conviction in court those drivers who can prove that, because of unforeseen difficulties, they were unavoidably delayed in finishing a journey and breached the rules.
The EU rules make transport undertakings liable for any infringements committed by their drivers. However, transport undertakings will not be held responsible for these offences if they can show that at the time of the infringement the driver's work was being organised in full consideration of the rules, and in particular that:
- no payments were made that encouraged breaches;
- work was properly organised;
- the driver was properly instructed; and
- regular checks were made.
Transport undertakings must also show that they have taken all reasonable steps to avoid the contravention. Employers also have a defence
if they can prove that the driver was involved in other driving jobs that the employer could not reasonably have known about. Where it is
found that an undertaking has failed in its obligations, prosecution may be considered against the undertaking for a driver's offence.
In the case of infringements concerning records, the law protects an employer from conviction if they can prove that they took all reasonable steps to make sure that the driver kept proper records.
Under the EU rules, enforcement action can be taken against operators and drivers for offences detected in Great Britain but committed in another country, provided that the offender has not already been penalised.
To prevent further penalties being imposed for the same offence, enforcement agencies must provide the driver with evidence of the proceedings or penalties in writing. The driver is required to carry the documentation until such time as the infringement cannot lead to further action. In GB, this is the same period as the driver is required to produce manual and analogue tachograph records at the roadside. After this time the driver should give the document to the operator, who must keep it for at least 12 months.
EU rules - co-liability
The EU rules also make undertakings such as consignors, freight forwarders, tour operators, principal contractors, sub-contractors and driver employment agencies responsible for ensuring that contractually agreed transport time schedules respect the rules on drivers' hours.
The undertaking must take all reasonable steps to comply with this requirement. If a contract with the customer includes a provision for transport time schedules to respect the EU rules, then the requirement would normally be satisfied. However, a driver employment agency is unlikely to absolve itself from the liability if it is found to have been offering back-to-back jobs to drivers where it will be impossible for the driver in question to take a daily or weekly rest in between those jobs.
VOSA consider the term 'driver employment agency' to include employment businesses as defined in the Employment Agencies Act 1973, Section 13(3).
Penalties for infringement of drivers' hours rules in Great Britain
Penalties for infringements of the drivers' hours rules in Great Britain, with maximum fines as contained within Part VI of the Transport Act 1968 (as amended), are as follows:
- failure to observe driving time, break or rest period rules: fine of up to £2,500 (Level 4);
- failure to make or keep records under the GB domestic rules: fine of up to £2,500 (Level 4);
- failure to install a tachograph: fine of up to £5,000 (Level 5);
- failure to use a tachograph: fine of up to £5,000 (Level 5);
- failure to hand over records relating to recording equipment as requested by an enforcement officer: fine of up to £5,000;
- false entry or alteration of a record with the intent to deceive: on summary conviction fine of £5,000 on indictment two years imprisonment;
- altering or forging the seal on a tachograph with the intent to deceive: on summary conviction fine of £5,000, on indictment two years imprisonment; and
- failure to take all reasonable steps to ensure contractually agreed transport time schedules respect the EU rules: fine of up to £2,500 (Level 4).
These are the maximum fines/punishment that can be imposed by a court of law.
Fixed Penalties and deposits
Following the Road Safety Act 2006, fixed penalties and deposits are likely to be introduced during 2008. Infringing drivers with verifiable UK addresses will, in the most routine cases, be dealt with by means of a fixed penalty, which can be considered by the driver for up to 28 days. Drivers without a verifiable address will be asked to pay a deposit equal to the fixed penalty and further driving will be prohibited pending receipt of that payment. This is predicted to result in fewer court prosecutions. More serious and multiple offences will continue to be prosecuted through the courts