BACKCHAT Issue 18

everything you need to know about transport law today
CLANDESTINE
ENTRANTS
THE CALAIS
IMMIGRATION ISSUE
page 4
THE SHORTAGE OF
WOMEN DRIVERS
page 12
WHY WE ARE GOING
TO BE WORKING
LONGER…
page 28
www.backhousejones.co.uk
Clitheroe & London
tel: + 44 (0) 1254 828 300
Issue 18

CONTENT
Page 2-3:
& RUNNING
& RUNNING
News Briefs
Page 4-5:
Clandestine Entrants – The Gap in
Government Advice in the Code of Practice
Page 6-7:
Schemes: Improving the environment,
transport safety and reputation or driving
operators out of work?
News Briefs
Page 8-9:
Driver shortage: Who is in the driving seat?
Are women and the young the answer?
Page 10-11:
Called up to a Public Inquiry
Page 12-13:
How Does the Whole Vehicle Type
Approval Affect You?
News Briefs
Page 14-15:
What’s in a name?
Application woes...
Page 16-17:
Tachographs – an update on EU regulation
Page 18-19:
Do me a favour! - An accidental tenant
Beware the repairing covenants!
News Briefs
Page 20-21:
Directors: Are you aware of your
obligations?
News Briefs
Page 22-23:
Buying a second hand vehicle is like...
Page 24-25:
CJEU approve “discrimination by
association” in the context of indirect
discrimination
Page 26-27:
Who can accompany an employee to a
disciplinary or grievance hearing?
Time’s running out for SMEs to comply with
auto enrolment
Page 28-29:
Why we are going to be working longer…
Page 30-31:
Holiday pay – more changes ahead?
News Briefs
Do you know what’s so intriguing about
Kenya’s success at long distance running?
All of their champions, almost uniformly, hail
from one tribe - the Kalenjin. This excites
sports scientists who study success and
who attribute this phenomenon to a curious
combination of facts. The Kalenjin are
originally a valley tribe who have moved into
the mountains, so they combine the lung
surface area of people born at high altitude
with ‘sea level ancestry’ that allows their
haemoglobin to respond quickly to training
at elevation.
Splendid as this gene science is, it doesn’t
appear to be the full story and nurture would
appear to be just as important. Kenyans
themselves seem to take a democratic view of
their success. It’s a peculiarity of Kalenjins that
they possess utter faith that anybody can run,
it’s only a question of ‘training’. Perhaps the
transport industry can learn from this humility
and willingness to invest in oneself.
Timing is everything in athletics. As Greek
mythology meets technology and running
shoes, it begs the question will it ever be
possible to run a marathon in less than two
hours? At the heart of this picture stands
our very own Mo Farah and Geoffrey Mutai.
In 2011 Geoffrey Mutai ran the fastest
marathon in history at the Boston marathon
in the ungodly time of 2:03.02 - which roughly
equates to 460, 16 second 100-yard dashes.
In spite of this extraordinary success his
Boston marathon time does not count as a
world record for reasons to do with gradients
on the course.
2 // Issue 18 www.backhousejones.co.uk

news briefs
CPT gets clarification on
tacograph rule by EU
The European Commission has provided the
Confederation of Passenger Transport UK
(CPT) with clarification regarding the use of
tachographs on short regular services which
do not involve stops en route.
The CPT made an official approach to the
European Commission whose response
was “It is acceptable for the pre-determined
stopping points at which passengers are
picked up and set down to be simply at the
start and finish of the service and that it is not
necessary for there to be stops en route.”
The reason the CPT made the official
approach to the European Commission was
because operators had been told it was
necessary to have stops on a route in order
to operate under domestic rules.
Running a business is like running a marathon
- it is dependent on many factors outside of
the operators/runners control – pacemakers,
cramps, the competition and even the weather!
The pursuit of a sub two hour marathon may
therefore be a dream about what can be
achieved, whilst battling pain and contingencies
before time runs out.
cannot avoid all of the
contingencies that impact upon the profitable
running of a transport company but it can
improve your training and will ensure you never
run out of time in dealing with inevitable potholes
in the road because our fixed fee subscription
service of no more than 33p per vehicle, per day
means we do not clock watch.
Marathon runners at 15 miles, at 20 miles and
even over the last mile have to ask their body,
again and again, what more can you give me?
The quest to run the two hour marathon may
yet prove to be impossible. But the quest to
improve compliance training and fix legal costs
for pence per vehicle is very much a possibility.
We can give you more and more, time and time
again. Come and join our running group.
Ian Jones
Director
E: ian.jones@backhouses.co.uk
T: 07710 187211
Steven Salmon, CPT’s Director of Policy
Development said “This helpful clarification
from the European Commission confirms
precisely the CPT’s view that it is not a legal
requirement for vehicles on a regular service
to be fitted with tachographs solely because
there are no stops on the route. It is very good
news for our members and will particuarly
help operators running school contracts to,
for example, sporting facilities which do not
involve stops along the way.”
Rapid increase
for FORS Gold
The FORS accreditation scheme is the Fleet
Operator Recognition Scheme. It has three
levels: bronze; silver and gold. Operators
only receive the FORS gold accreditation if
they demonstrate exceptional performance
in reducing emissions, road safety and a
commitment to raising industry standards.
FORS has announced that there has been
an increase of 129% in gold accredited
operators since the scheme went national this
year. This means there are now over 21,700
vehicles accredited with the gold standard
and over 87 accredited companies.
tel: 01254 828 300 Issue 18 // 3

Clandestine Entrants – The Gap in Governm
The media at present is full of immigration stories
just as locations in Europe from Kos to Calais
are full of would be migrants. By the time lorry
drivers and our haulage industry have contact
with them, the law calls the same people “would
be clandestine entrants”.
But lorry drivers also have rights. They have
the right to do their job for their hauliers and on
behalf of the customers without interference
and without physical threats.
Clandestine entrants, of course, have rights as
well. Many will be victims of persecution though
some will be economic migrants only. Some of
them will be criminals. All are desperate to gain
admittance to the UK.
The classic difficulty that lorry drivers in the UK
find is that having arrived in the UK and driving
on UK roads they then hear something from
deep inside their trailer which suggests that they
have clandestine entrants on board.
What to do?
Should the driver deliver his vehicle to the Police
or UK Border Agency, voice his suspicions and
let the authorities “open the box”?
The driver’s involvement in bringing the legal
immigrants then comes under scrutiny.
If he delivers them up to the authorities,
that might be strong evidence that he is not
knowingly part of an illegal scheme.
The driver and haulier will face heavy civil
penalties unless they can prove they have the
statutory defence. They will have to prove the
defence against Civil Penalties under s34 of the
Immigration and Asylum Act 1999 in order to
stand a chance of avoiding the penalty. If they
cannot, they face penalties of up to £2,000.00
each per stowaway.
The stakes are high. The Civil Penalties may
be the least of the driver’s worries. He will be
concerned that having brought clandestine
entrants into the UK that the Police/UK Border
Force think he is criminally complicit with them
and perhaps being paid by them. It is perhaps
understandable that a driver faced with the
suspicion he has clandestine entrants on board
is reluctant to go to the authorities. The UK
Border Force have a tough job and are under
specially close scrutiny at present. The driver will
fear that they are suspicious of him and at the
very least unsympathetic to the dilemma he has
found himself in.
The driver is likely to fear personal arrest and
criminal charges of being complicit in bringing in
clandestines. With these worries and concerns
he may feel tempted to find a quiet location at
which to open the doors and let his passengers
walk away on the basis this is the option least
likely to cause him trouble.
The Code of Practice under the Act (“the
Code”) addresses a situation where the driver
forms a suspicion that he has clandestines
on board prior to embarkation to the UK. The
Code does not address a situation or suggest
what a driver should do where concerns arise
at the port of disembarkation or once he is
through UK security.
Once again, the driver, already “on the front
line”, is given no guidance and the prospect of
heavy civil penalties is a strong disincentive to
going to the authorities.
The driver and the haulier have to prove 3 things
if they are to avoid a civil penalty under the Act.
The Code sets out good practice which assists
in proving the defence.
1. No knowledge, and no reasonable
grounds to suspect clandestines are on
board. The haulier will generally not have
been present personally when the vehicle
is loaded or on the journey and will have
no problems proving this element. The
driver will often have been present when
the vehicle is loaded and will of course
have been driving with the stowaways on
board prior to them being found. Often the
driver can do no more than deny actual
knowledge and point to an absence of
physical clues of a break in which might
4 // Issue 18 www.backhousejones.co.uk

ent Advice in the Code of Practice
The Code ignores the dilemma. It is desirable
that the Code gives specific advice as to what
a driver should do in these circumstances.
The Code by ignoring the dilemma does
not even acknowledge that the situation
exists. It would be possible for the Code to
acknowledge the dilemma and for instance
to indicate that the civil penalties, if they
applied because a driver could not prove the
defence, would be capped at a lower level in
cases where a driver went to the authorities.
This of course would have to be in a situation
where the authorities were satisfied that the
driver was not complicit in the importation of
his passengers in the first place.
In the absence of such comfort, drivers will
remain in a dilemma and will make up their
minds as to what to do on a case by case basis.
The absence of guidance from the Government
for a driver in this dilemma deserves addressing
– The Code, by ignoring the dilemma, does not
acknowledge the situation exists. At the time
when the driver has to make a decision having
formed the suspicion that he has clandestines on
board will be without the benefit of legal advice.
In the meantime, the number of migrants in
the Pas de Calais increases and the politicians
wrestle with the situation across Europe.
have put him on notice. He could also
point to the system of checks and his
operation of the systems (see below).
2. An effective system to prevent the carriage
of clandestines. Both driver and haulier will
have to demonstrate the operation of a
proper system for ensuring the loading and
security of the vehicle without stowaways
on board. They will have to demonstrate
an effective system of locks and seals and
inspection procedures for the vehicle prior
to sealing up and regular interim checks by
the driver on route, of course each time he
stops he potentially gives the clandestine
entrants the opportunity to sneak on board.
All of this must be properly documented
and ideally (according to the the Code) have
the fact that he is carrying out the checks
witnessed by a third party. The haulier must
train the driver and demonstrate when this
was done and how it was kept up to date.
The driver’s knowledge should be audited.
3. The driver must operate the system
properly and be able to demonstrate
he did so. The driver can expect to be
interviewed if clandestines are found and
will have to demonstrate in interview that
he knew nothing of his passengers and
that he did carry out appropriate checks
and document them.
A further problem for the driver is that he cannot
imprison the people once he is aware that they
are in his vehicle. In the end it is the driver’s
decision as to what he is going to do. The driver
has to balance a moral imperative to go to the
authorities against a moral and legal duty not
to imprison his passengers once he knows
they are aboard and wish to get out. Once
he knows they are there the driver may well
have some duty to ensure that they are not in
danger. The sensible advice to the driver would
be to go to the authorities. The driver of course
finds himself in an impossible dilemma for the
reasons already stated.
John Heaton
T: 01254 828 300
E: john.heaton@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 5

news briefs
Traffic Commissioners
seek operational
changes to deal with
lack of resources
Driver conduct cases are swamping our
Traffic Commissioners and changes need to
be made to best serve the road transport
industry says senior Traffic Commissioner
Beverley Bell.
An eight week consultation has
recently closed during which it asked
stakeholders their opinions on a number
of changes proposed to the senior Traffic
Commissioner’s statutory document on
vocational driver conduct. The statutory
document sets out guidelines on how the
Traffic Commissioners deal with certain
cases.
In the consultation document it is stated
that the Traffic Commissioners have a clear
priority to concentrate resources on those
who pose the greatest risk to road safety,
fair competition and legal operation. The
document also says that whilst the Traffic
Commissioner can only take action in a
driver conduct case if it is referred to by
the DVLA, the number of vocational licence
holders and applicants are too great for the
Traffic Commissioners to deal with every
potential referral.
One of the key areas covered by the
consultation was if certain offences should
be dealt with by the Office of the Traffic
Commissioner staff rather than the Traffic
Commissioners themselves. Another area
questioned whether all disqualifications
committed in a commercial vehicle should
be referred to the Traffic Commissioner and
heard in a driver conduct hearing.
Director of policy at the RHA, Jack Semple
said “We’ve got to recognize that the Traffic
Commissioner does not need to deal with
every case but it is important that the gravity
of the Traffic Commissioners is felt and that
the more serious cases are dealt with by a
Traffic Commissioner.
Schemes: Improving the envir
or driving operators out of wor
Compliance has traditionally been
something that affected all operators
equally. We are now seeing, however,
additional requirements being increasingly
imposed on some operators that depend
on where vehicles are working and who for.
A breach of such requirements could lead
to a denial of the opportunity to tender for
work, the loss of existing contracts or the
imposition of financial penalties (by way of
civil enforcement). This is effectively a new
type of compliance enforcement.
It is true to say that passenger and goods
commercial vehicle operations are some of
the most tightly regulated of businesses. UK
legislation starts at a European level, with
regulations and directives. Then there are
domestic rules for each member country. These
incorporate European requirements into national
laws, also adding national requirements. There
is also a raft of other legislation affecting
commercial vehicle operators, such as
environmental and health and safety. One thing
is clear and that is that this legislation affects
all vehicles and operators equally, with few
exceptions. The ‘O’ licensing regime is enforced
through the traffic commissioners who regulate
to best practice. Organisations such as the DfT
and DVSA assist. The law is enforced through
the courts and the DVSA, police and HSE.
Admittedly, there has always been additional
local regulation through, for example, weight
restriction orders that prevent certain sizes of
vehicle travelling along designated roads or
over bridges. Such orders have however, been
based on protecting the environment and have
been applied equally to all vehicles above a
certain size and have not required vehicles to
be modified.
The landscape is changing however, and all
too often operators are now also hearing about
a number of schemes: LEZ; the Safer Lorry
Scheme; FORS and CLOCS, to name a few.
Things began to change with the introduction of
the Low Emission Zone (LEZ) in London. The
scheme was designed to encourage a clean-up
of the most heavily polluting vehicles in London.
It effectively further regulated the use of what
would otherwise be lawful vehicles, not just
on specific roads but across a whole region.
Although lawful, in terms of their construction,
roadworthiness, MOT and design, they
would face financial penalties if they ventured
unmodified into the geographical area covered.
Other major cities have indicated their interest
in setting up similar schemes. If this happens,
operators may find that their lawful vehicles are
prevented from working, due to the economic
impact of fines every time their vehicles move
within the zone.
When first registered, many commercial
vehicles are required to have specified mirrors
and sideguards. However, there are numerous
exemptions. Retrofitting to older vehicles is not
required. However, with the introduction of TfL’s
new Safer Lorry Scheme from 1 September
2015, (subject to very few exemptions) all
vehicles over 3.5 tonnes operating within
London are required to be fitted with this safety
equipment. So vehicles that are lawful and could
pass an MOT will be required to have additional
items (mirrors and side guards) fitted. Again
financial penalties will hit the non-compliant.
Another trend has developed concerning
accreditation schemes and best practice.
These are voluntary, with operators able
to choose whether to join or not. There is
6 // Issue 18 www.backhousejones.co.uk

onment, transport safety and reputation
k?
no direct financial penalty associated with
any lack of accreditation but, many large
infrastructure contracts expect operators to
have accreditations in place. Failure to hold
the charter mark renders operators ineligible to
tender for work and subject to loss of existing
contracts if accreditation is withdrawn.
These schemes bring with them new auditing
regimes covering both an operator’s vehicles
and its procedures and systems. One of the best
known is FORS, the Fleet Operator Recognition
Scheme. Again, this was originally introduced
in London, and soon became mandatory if an
operator wanted to undertake work on large
projects. Many construction companies work on
such infrastructure projects, so it is no surprise
that they, too, have adopted FORS and now
require operators to hold accreditation for any
of their projects. Accordingly, vehicles destined
for construction sites across the UK are now
required to hold this qualification. FORS has
three levels of recognition and recognition can
be withdrawn if an operator fails the annual
audit.
Many local authorities are also now backing
the Ecostars Fleet Recognition Scheme. This
is aimed at promoting efficient and cleaner
operations for buses, coaches, vans and HGVs.
The construction industry has the CLOCS
(Construction Logistics and Cyclist Safety)
scheme. This is aimed at protecting vulnerable
road users. All such schemes are driven by a
wish to improve the environment, road safety
and transport’s reputation. However, they
all add an extra level of compliance burden,
including vehicle adaptation, for operators.
While their existing systems, procedures and
vehicles may be satisfactory for DVSA and
the traffic commissioners, they may not for the
schemes.
We wonder if these new compliance
requirements might one day usurp the courts
and the traffic commissioners. If local and
regional authorities determine what vehicles
they will allow, non-compliant operators might
either have to cease trading or move away.
Similarly, if accreditation schemes impose higher
standards than those of DVSA, operators may
well find justice more draconian and summary
than that currently meted out by the traffic
commissioners.
Also, to what extent should there be consistency
across schemes and geographies. Some may
think that one consistent set of rules would be
better than many schemes depending on region
and/or trade. While it might be early days yet,
if these trends continue and more areas and
contracts require continued accreditation then
many perfectly legal operators may find it harder
to find work.
Jonathon Backhouse
T: 01254 828 300
E: jonathon.backhouse@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 7

Driver shortage: Who is in the driving seat? A
If you were asked to picture a typical UK lorry
driver, images of a white, middle-aged man
chomping on a Yorkie bar, guzzling a can of
Tizer and reading the red top tabloids would no
doubt spring to mind. It is unlikely that any of
you would picture that driver being young and
even less likely that any of you would imagine
them to be a woman. Sadly, these stereotypes
reflect the current reality. Around 60 per cent
of HGV drivers in the UK are aged over 45 yet,
astoundingly, only 2 per cent are aged between
16 and 24 and less than 1 per cent are female.
It is perhaps therefore unsurprising that, in an
industry dominated by older male drivers, the
UK is facing an unprecedented shortage of
qualified and experienced professional drivers.
Solving this problem in the long term means
attracting more young people and more people
from the under-represented sectors of society
(such as women) to the industry. But how bad
is the shortage and why are young people and
women, in particular, currently choosing not to
enter the sector?
The statistics
It is estimated that the UK is currently 60,000
HGV drivers short and that, by 2020, the
industry will need an extra 150,000 HGV drivers
to keep the wheels, literally, turning. However,
the number of individuals taking and passing
their HGV test has steadily fallen since 2008
and it is estimated that only 17,000 drivers are
currently entering the industry annually (25 per
cent lower than in 2008). The industry also
loses around 35,000 drivers every year due to
retirement or failure to pass periodic medical
tests (and this does not include those that have
their entitlements revoked or those that leave
the sector for other job opportunities and to
pursue different careers).
The combined impact of an ageing driver
population and the lack of new entrants to
replace those who leave means the sector now
faces a chronic skills shortage, which creates a
very real and fundamental problem for operators
and the economy.
Concerns were exacerbated last September,
with the introduction of the Driver CPC. This
acted as a trigger for many drivers to retire early
or quit and saw experienced drivers leave the
industry en masse rather than complete the 35
hours of periodic training required to obtain the
qualification. It is estimated that 20,000 drivers
have left the industry since September 2014.
The shortage is also driving down quality.
One client recently confirmed that due to
the driver shortage, the quality of drivers has
definitely decreased. Experienced drivers are
commanding higher wages that smaller and
medium sized operators simply cannot afford.
As a result of this decrease in driver quality,
insurance claims may possibly also increase.
Barriers to entry
One of the most fundamental problems that
the industry has to overcome if it is to attract
more people to the sector is its image. There
is a lack of visibility and appeal to wider society.
People, particularly younger people and
women, simply do not know that commercial
road transport exists as a viable career option
and, sadly, too few younger people and
women are therefore choosing professional
driving as a career.
Furthermore, the recruitment practices favoured
by many small operators, such as word-ofmouth,
means recruitment of non-typical drivers
(such as younger people and women) is further
limited.
Historically, becoming a professional driver was
often viewed as a job of last resort for those
without specialist skills and public perception
still seems to be that there are far more attractive
industries for younger people and women to
enter. Despite almost one million young people
not being in employment, education or training,
those aged between 16 and 24 are simply not
attracted to the sector and shun it as a potential
career option. Women, in particular, seem to be
deterred by the standard and security of facilities
available to drivers, the non-standard working
patterns and unsociable hours associated
with the role, which are not perceived to be
conducive to family life, and the job itself is,
admittedly, not a glamorous one!
Then there is the cost of acquiring a vocational
licence (somewhere between £3,000 and
8 // Issue 18 www.backhousejones.co.uk

e women and the young the answer?
Conclusion
If you look around you now, almost everything you
can see (from the clothes you wear to the food
you eat) will have been delivered by a lorry for at
least part of its distribution journey. Commercial
road transport is the life blood of the UK economy
with 80 per cent of goods being moved by road,
yet there is a general lack of awareness of the
road transport sector and a lack of recognition
of the vital role that it plays in supporting the UK
economy. This needs to change.
Despite it being an industry dominated by older
male drivers, those younger people and women
who do work in the sector report only positive
experiences. Younger people and women
therefore currently provide a largely untapped
resource.
The road transport sector is a dynamic sector
but some of the negative preconceptions
need to be challenged. In an attempt to do
this, Backhouse Jones are supporting me in
obtaining my HGV licence. So far, I have passed
my medical assessment and applied for my
provisional licence and am looking forward to
getting in the driving seat!
£5,000 – even if they pass first time). This acts
as a barrier to many potential new entrants to
the sector. It is a lot of money to lay your hands
on and there are currently no student loans or
public funding available for licence acquisition.
Even where potential new entrants are able
to find the money to fund their training, they
face delays in medical assessments from the
DVLA and delays in test bookings from DVSA.
Also,they then need to find an operator willing
to take them on as a driver with no experience!
Insurance then presents a further hurdle, as
many insurance companies insist that drivers
are at least 25 years old and have at least 2
years’ driving experience.
Breaking down the barriers
It is clear that there is an urgent need for the sector
to engage with the currently under-represented
areas of society to improve public perception of
the industry and quash preconceived notions
to broaden the appeal of driving and convince
prospective employees that commercial road
transport can provide a viable and rewarding
career. Senior Traffic Commissioner, Beverley
Bell, recently expressed the need for “challenging
stereotypes, raising the profile and addressing
the skills gap” in the logistics sector if we are to
recruit and retain enough new entrants to plug
the ever-increasing shortage.
In June, the industry asked the Government for
help in addressing the driver shortage when it
called for investment of £150 million in driver
training; however, there was no support for this
funding in the July Budget. The Government
did indicate in July that it will review the speed
with which HGV driving tests and driver
medical assessments currently take place and
consider options to accelerate these in order
to help address the driver shortage. The Road
Haulage Association now wants the Chancellor,
George Osborne, to offer funding to train a new
generation of drivers – especially women – in
the Autumn Statement and there are currently a
number of other ongoing initiatives, which seek
to attract under-represented sectors of society
into the industry.
Laura Hadzik
T: 01254 828 300
E: laura.hadzik@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 9

Called up to a Public Inquiry
Anyone who operates Large
Goods (LGV’s) or Passenger
Vehicles in the UK, with very
few exceptions, requires an
Operator’s Licence issued by the
Traffic Commissioner.
One of the powers the Traffic Commissioner
has in connection with an Operator’s Licence
is to call the holder of, or applicant for, that
Operator’s Licence to a Public Inquiry.
Purpose of a Public Inquiry?
An operator holding an Operator’s Licence
has to satisfy a number of legal criteria. These
include:-
• Good Repute
• Financial Standing
• Professional Competence (unless restricted
licence)
• Suitable Operating Centre
• Proper arrangements for Maintenance
• Proper arrangements for Tachographs,
Drivers Hours and Working Time.
If a Traffic Commissioner has a concern about
any of these criteria not being met, they may call
a Public Inquiry. This can happen at any point
from when the operator applies for a licence,
makes an application to vary it or just during
the term of the Operator’s Licence when the
operator has actually made no application.
Often the Traffic Commissioner will have
received investigation reports from the DVSA
and there may already have been some
correspondence with the operator, long before
the Inquiry is actually listed.
What’s the normal procedure?
The Inquiry will be notified to the operator by a
long letter from the Traffic Commissioner. The
letter will inform the operator that they are being
called to a Public Inquiry and will set out the
issues which the Traffic Commissioner wants
to consider at the Hearing. This is known as a
“Call-in-Letter”.
Shortly after the letter has been served and
before the Hearing, the operator should receive
a “Brief” in the form of a large paginated
photocopied bundle; this is known as “the Brief”.
The Brief should contain all the documents that
the Traffic Commissioner will consider at the
Hearing and is essential that the Brief is taken
by the operator to the Hearing.
The Hearing will then take place and, depending
on the complexity of the issues to be considered,
can last anything from an hour up to a day.
There can be cases that last for a much longer
period of time however these are rare.
At the Hearing the Traffic Commissioner may
hear evidence from a DVSA or third party
witness. Any operator or Transport Manager
who is called to the Inquiry can ask questions
of those witnesses.
The Traffic Commissioner will then invite the
operator to present their evidence to the Inquiry.
The Inquiry process is usually very interactive
between the Traffic Commissioner and the
various witnesses and parties and you can
normally expect a healthy and direct dialogue
on the issues. Typically, the Inquiries will be
thorough with an in-depth analysis of both
historic concerns and up to date documentation.
At the Hearing, an operator is typically asked
to produce a large volume of up to date
maintenance and tachograph records. These
will almost certainly be analysed by the Traffic
Commissioner and any DVSA witnesses that
are present.
It is very important the operator fully understands
the documents that he is producing and
therefore should not be taken by surprise at any
of the comments that those documents raise in
the Hearing. Thorough preparation is essential.
The Decision
Having heard all of the evidence, the Traffic
Commissioner will normally go on to make a
decision within the Hearing. It is though not
uncommon for a Traffic Commissioner to finish
the Inquiry and indicate that they will issue
a decision either in writing or orally on a later
occasion. There can be a number of reasons
for this ‘extra time’, however, generally, it is to
allow the Traffic Commissioner thinking time in
order to analyse what has been heard and to
reach a balanced outcome.
You should receive any written decision in
accordance with guidance within about 28-
days of the Hearing.
Other Parties
As well as the operator being called to a Public
Inquiry it is common for the Transport Manager
and the directors/partners of a business to
receive similar calling in paperwork. The Traffic
Commissioner’s powers include the power to
take repute off a Transport Manager and where
a licence is revoked, to disqualify a director/
partner or operator from holding or obtaining a
licence. These powers are commonly exercised
in serious cases.
In addition, in LGV Operator’s Licensing, the
Traffic Commissioner can hold a Public Inquiry
to consider the environmental/road safety/
suitability of a site proposed as an operating
centre. In these cases any statutory objectors,
for instance the Police or Local Authority, or
any representors – people who occupy land in
vicinity of the site – will be invited to attend. An
operator should know in advance who these
people are. These types of Hearings are known
as “Environmental Public Inquiries”. – hyper link.
What to do if you find yourself in front of the
Traffic Commissioner?
At a Public Inquiry, the Traffic Commissioners
can take action over a very wide spectrum
of powers. They can, for example, grant an
application, increase a vehicle authorisation,
take no action or refuse an application but
leave the licence otherwise alone. On the other
side, they can curtail (reduce authorised vehicle
numbers), suspend a licence (prevent vehicles
being operated under the licence for a set
period of time), revoke a licence and where a
licence is revoked, can disqualify parties from
holding or obtaining a licence.
The Hearings are thorough where the issues
will be discussed in depth. There is a fairly
complex legal backdrop to the way in which
Traffic Commissioner’s operate and the issues
they may be discussing. The following sources
will commonly be referred to:-
10 // Issue 18 www.backhousejones.co.uk

1. STC Directors and Guidance
2. Primary and secondary legislation for
Operator’s Licensing
3. Primary and secondary legislation relating
the construction & use and maintenance of
vehicles
4. Primary legislation relating to the EU/UK
Drivers Hours and Working Time Regulations
5. Multitude of other rules and regulations
which apply to the UK transport industries.
When you are called to a Public Inquiry, your
compliance, as a whole, will normally be under
the microscope and the Traffic Commissioners
will regularly consider issues which go on the
face of it, far beyond what you might understand
to be the concern in the “calling in letter” and the
“Brief”.
You are entitled, as of right, to present written
and oral evidence and to cross examine
witnesses that may be giving evidence which is
adverse to the operators interest.
investigation or they are undertaking a major
change in the business structure, including
acquiring another company for instance.
The earlier that you seek specialised assistance
with these issues, perhaps long before a calling
in letter or brief is produced, the better your
prospects of a satisfactory outcome if there
is a Public Inquiry. Indeed, in many cases, an
Inquiry can be avoided all together by better
communication with the Office of the Traffic
Commissioner (OTC) through a skilled specialist.
Backhouse Jones is the UK market leader
in advice and representation before the
Traffic Commissioners and are quoted by the
Chambers Independent Guide as “the premier
firm dealing with road transport regulatory
work...with far and away the biggest market
share of any firm in this field”. We would urge
anyone concerned about a Hearing to contact
us as soon as that concern is raised. It genuinely
is never too early!
help from us, the level of the stress and the focus
of the time consuming effort can be managed.
Operators will frequently have known many
months before an Inquiry that they will have
had an adverse tachograph or maintenance
Public Inquiries can be stressful and time
consuming events in the life of an operator’s
business. However with competent, specialised
James Backhouse
T: 01254 828 300
E: james.backhouse@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 11

How Does the Whole Vehicle Type Approval
All commercial vehicles, whether passenger
or goods carrying, motor vehicles or trailers
must undergo type approval before they are
registered and put into use on our roads.
There are three approval processes which
can apply to commercial vehicles before they
are first registered, the most recent of these
schemes being EC Whole Vehicle Type Approval
(ECWVTA) which came into full force at the end of
2014. However, there still remains a fair amount
of misunderstanding about what the system is
and how it affects transport operators.
What is type approval?
Type approval says that the vehicle has been
constructed using components which meet
minimum criteria and in a safe manner. This is
different to a vehicle’s annual test which looks
at issues of safety and roadworthiness from the
perspective of whether individual items remain in
a safe and sound condition.
The National Small Series Type Approval
scheme
One system of type approval is the National
Small Series Type Approval (NSSTA) scheme.
This is generally for manufacturers who produce
less than 500 vehicles each year. Such vehicles
can only be sold and registered within Great
Britain. The way it works is that the manufacturer
submits a test vehicle to the Vehicle Certification
Agency (VCA). If the prototype passes the
relevant tests, an inspection is conducted of the
manufacturing facility so that the authorities can
be satisfied that all subsequent vehicles can be
manufactured in a consistent way. If the VCA
is satisfied then NSSTA approval is granted.
Subsequent, identical, vehicles do not have to
be individually tested and the manufacturer can
self-certify that the following vehicles meet type
approval in order for them to be registered.
The Individual Vehicle Approval scheme
There is also the Individual Vehicle Approval (IVA)
scheme. This is for bespoke, individual vehicles
which are ‘one offs’ or made in very small
numbers. Each individual vehicle is required
to be tested before being put into service.
The examination of the vehicle is conducted
by the DVSA. Like vehicles approved under
NSSTA, vehicles receiving approval through
the IVA method cannot be registered abroad.
Subsequent exportation abroad may mean
the vehicle needs additional approval from
whichever country it is going to be re-registered
within.
The ECWVTA scheme
The ECWVTA scheme is aimed at manufacturers
who produce substantial numbers of vehicles
each year and also those who wish to sell and
register their vehicles across the European
Community. It operates in a similar way to the
NSSTA scheme. For each model of vehicle
produced, a specimen test vehicle is submitted to
the VCA who make sure it has been manufactured
in accordance with all the necessary minimum
safety requirements. If approved, there is an audit
of the manufacturing facility. This should ensure
that subsequent vehicles will be produced in a
consistent manner. Once ECWVTA is granted,
the vehicle manufacturer may self-certify that
subsequent vehicles meet the same standard
and these vehicles may be registered.
The ECWVTA scheme also recognises that
some vehicles will have a number of companies
involved in the manufacturing process. Each
manufacturer can obtain type approval for their
part of the process. However each stage must be
approved and all approvals must be presented
together when the vehicle is first registered.
Modifications and bespoke vehicles
The type approval process can be an expensive
process for a manufacturer to obtain either
ECWVTA or NSSTA certification. All vehicles
(subject to a very limited number of potential
modifications) must be manufactured and
constructed in exactly the same way once the
authorisation has been granted. A new type
approval must be obtained for any changes
that go beyond the scope of the original type
approval. It is a criminal offence for manufacturers
to certify vehicles as meeting type approval when
in fact they have not been built in accordance
with the approved design and process. Other
offences exist for registering vehicles which do
not meet type approval and then, for operators,
using the vehicles on the road which have not
been properly approved. So, unless an operator
buying a new vehicle is prepared to have it
approved through the IVA scheme, the scope
for potential modifications to a vehicle before it
is registered and put into service are limited. We
are therefore now likely to see more standard
vehicles in service and manufacturers and body
builders being less willing to make alterations.
If an operator does want to make changes to
a standard vehicle or commission a bespoke
vehicle, the IVA scheme does allow this to
happen. What the new systems and procedures
now mean, though, is that the vehicle must be
individually inspected before its registration. A
vehicle manufacturer or body builder will not be
able to self-certify. The need for additional testing
will possibly mean a delay in getting it onto the
road and add to the cost of the vehicle. Its resale
value may also be less, as the IVA and NSSTA
schemes also mean that the vehicle cannot
easily be sold abroad.
Operators also have to be careful not to modify the
vehicle so that it no longer complies with the type
approval specification once a vehicle has been
given type approval by any of the three schemes,
then registered and put into use. Again, for clarity,
type approval is different from the annual MOT
test system. Any modifications made to the parts
of the vehicle which are subject to type approval
will require the vehicle to be re-inspected. If,
for example, substantial changes are made to
the suspension or braking system, the vehicle
would have to be re-inspected under a voluntary
individual vehicle approval scheme. If the operator
fails to get these changes approved he (and even
the driver) will be committing criminal offences.
Whilst at the current time the maximum penalty
for such offences is a fine of £2,500, proposals
are in place to increase this, in the not too distant
future, to a maximum fine of £25,000.
Conclusion
The ECWVTA is affecting vehicle manufacturers
and associated industries more than operators.
They now have to ensure that they obtain approval
before a vehicle is first registered. However,
operators should be careful about buying vehicles
where the dealer or manufacturer puts the burden
12 // Issue 18 www.backhousejones.co.uk

Affect You?
news briefs
New criminal court charges said to ensure
that criminals “pay their way”
on the operator to carry out the registration
process, as it could prove to be very onerous.
Also, it is likely that manufacturers and dealers
will be less amenable to modifying vehicles prior
to registration for operators. This is because any
changes may invalidate type approval. If the buyer
insists on the changes, the vehicle will require
approval under the IVA scheme at an additional
cost. Material changes post first registration will
also require a resubmission of the vehicle for
approval and operators should be aware of this.
A new set of criminal court charges came
into force from 13 April 2015 which mean
that anyone convicted of a criminal offence
in England and Wales may have to pay a
fee of up to £1,200 towards the cost of their
case. The fee will be paid on top of fines,
compensation orders and defendants’ own
legal charges.
Defendants convicted by a magistrates’ court
for a summary offence on a guilty plea will be
charged £150. Conviction in the magistrates’
court at trial of a summary offence will incur a
£520 charge. Those convicted of an eitherway
offence at a magistrates’ court trial will
be charged £1,000.
In the Crown court, a conviction on a guilty
plea will be charged £900, while those
convicted at a trial on indictment will have to
pay £1,200.
The charges have already been criticised for
being likely to encourage innocent people
to plead guilty (especially those who have
received a fixed penalty notice, can accept
the fixed penalty and therefore avoid the fee)
as those who admit their offences will pay
less than those convicted after a trial. They
are also likely to place a burden on people
with little income as the fee is not means
tested.
In a statement on the charges, justice
secretary Chris Grayling said: ‘From my first
day in this job I have been clear that people
must have confidence in our justice system.
We’re on the side of people who work hard
and want to get on, and that is why these
reforms will make sure that those who
commit crime pay their way and contribute
towards the cost of their court cases.’
A government assessment suggested that
by 2020 the system could raise £135m
annually after costs, but it warned that by
then the court service would be owed £1bn
in unpaid fees. It appears to us that in the
majority of cases defendants on low income
or benefits will struggle to pay such fees and
it will unfairly penalise businesses and those
on higher means who have the ability to pay”
The government has indicated that the new
fee would be reviewed three years after
implementation.
Paperless driving licence: check code time
limit extended
Andrew Woolfall
T: 01254 828 300
E: andrew.woolfall@backhouses.co.uk
On 8 June 2015, the on-line system replaced
the paper counter-part to the British driving
licence. To share details of a driving licence
with third parties such as employees or car
hire companies for example, the licence
holder must generate a code which can be
redeemed by the relevant third party. This
code was only valid for 72 hours and this
was causing some difficulties. This 72 hour
time period has now been extended to 21
days, giving third parties more time to check
licences.
The FTA lead on the DVLA, Ian Ghallager
commented on the changes: “Allowing
employers longer to use the code before it
expires is a sensible move. However, we still
believe more changes are needed to make
the system efficient and effective.”
tel: 01254 828 300 Issue 18 // 13

What’s in a name?
What many Operators consider
to be subtle or minor changes
within their business often have
unintended consequences as
far as the Operator’s Licence is
concerned. Regularly operators
find themselves at Public Inquiry
due to changes made in the
business structure which has
resulted in the licence being held
by one entity but the vehicles are
being operated by another.
The basic position is that the operator’s licence
must be held by the entity that is operating
the vehicles, this can be a sole trader, a
partnership, a limited liability partnership or a
limited company. However, changes made to
the structure of the business can mean that the
entity which holds the licence no longer exists or
is no longer the operator of the vehicles.
One of the most common examples of this is
when a sole trader or a partnership incorporates
their business i.e. become a limited company.
The person (in the case of a sole trader) or
people (in the case of a partnership) in charge
of running the limited company are probably
the same individual(s) that were running the
previous business but the establishment of
the limited company has created a completely
new entity that must have its own operator’s
licence.
Another very common scenario is where a
limited company holds the operator’s licence
but because of restructuring, administration/
liquidation that company is no longer trading or
the operation of the vehicles has been moved to
another company with close links.
A change in partners within a partnership
often creates a new partnership and therefore
a new entity which requires a new licence
or alternatively where a sole trader goes into
business with another person or a number of
other individuals a new licence is required as
that business is no longer a sole trader, it has
become a partnership.
The regularity that these issues arise at Public
Inquiry means that it would be prudent for all
operators to review their operator’s licence and
ask themselves whether the name on the licence
is the entity that is operating the vehicles. If there
has been a change in the name of the business
or the persons listed as the licence holders then
advice should be sought.
If you are unclear which entity is the operator
of the vehicles you need to ask yourself which
entity is it that employs the drivers or gives the
drivers their day to day instructions? If the licence
is held by a different entity the chances are that
the operator’s licence is held by the wrong entity.
What are the implications of the wrong entity
holding the licence and does it matter seeing as
there is a licence in place?
Operator’s licences are not transferrable from
one business to another. This means that the
name on the licence disc must be the entity
operating the vehicle, another entity cannot use
that disc. The most common way this issue
comes to light is during a DVSA stop when the
officer asks the driver who he is working for. If
the name given by the driver doesn’t match
the name on the licence disc it will alert the
DVSA officer to the prospect of there being
an issue with the licence. Depending upon
the officer’s findings this can result in a Public
Inquiry, a prosecution for using a vehicle without
a licence, using an operator’s licence disc with
intent to deceive and even impounding of the
vehicle. Furthermore, the insurance policy may
be invalid. It is therefore critical that the licence
is held by the correct entity.
If the “entity issue” is identified by a DVSA
officer or the Traffic Commissioner the operator
then finds themselves in the position of having
to apply for a licence in the correct entities
name and having to wait until that licence is
granted until they can legally operate again.
A new licence application can take weeks
or months and may only be determined at a
Public Inquiry if the matter has been brought to
the attention of the Traffic Commissioner. The
inability to operate for these periods would have
a devastating effect on most businesses which
can be avoided by simply checking the name
on the licence documents.
Mark Davies
T: 01254 828 300
E: mark.davies@backhouses.co.uk
14 // Issue 18 www.backhousejones.co.uk

Application woes...
Are you helping the Traffic
Commissioner Staff to help you
with o-licence applications?
With the Traffic Commissioners Office
committing to developing a new online based
application process fairly shortly, it should lead to
a better economic and time saving approach to
operators.
You may have heard over the previous few years
that the offices of the Traffic Commissioners are
developing a new computer system that will
better assist the Central Licensing Unit based
at Hillcrest House in Leeds. This will deal with all
the routine types of applications that are usually
dealt with on a daily basis.
Key to this is an online application form, which
should assist users in the application process
and cut down the common errors found on a
number of applications. The system should
also stop applications being submitted if they
are deemed to be incomplete. Of course,
incomplete applications leads to delay with
the case worker often having to contact the
operator by post for a response.
With these changes you should also see a
change to the user interface that operators
see as part of the self-serve function. It should
become easier for operators to make simple
changes to licences (such as updating director
details or change in maintenance providers)
without the hassle of having to write into the
Central Licensing Unit and then chasing for
responses.
eliminated and thereby allowing the case worker
to start working on the application sooner. This
should lead to the application getting before a
decision maker sooner so that the application
can be considered for grant.
One of the key changes for the Central
Licensing Unit is the integration that the new
system will have with Companies House. The
Office of the Traffic Commissioner are looking to
be able to cross check operator licence details
with companies house records to see if there
has been a change in Company status (i.e.
administrations, liquidations, etc.) or a change
in directors.
Due to operators giving an undertaking that such
changes will be notified to the Commissioner
within 28 days as part of the licence grant, it
is important that Operators keep their licence
details up to date themselves rather than
waiting for the Traffic Commissioner to tell them
that there has been a change and it is a breach
of an undertaking for a failure to notify.
Due to these upcoming changes we highly
advise all Operators to check their licence
details to ensure that the following is correct;
• The licence is in the name of the correct entity
• Company Number and Registered Office/
corresponds address is correct
• The licence lists all directors or partners
within the business
• All used operating centres are listed
• Your list of maintenance providers are up to date
• The correct Transport Managers are specified
This leads to headaches for the central
licensing team as they try to sort out the
issue or headaches for the operator in trying
to sort out the mess. Under the current
paper based application system, much of
succeeding in a speedy application process
is understanding exactly what information the
Traffic Commissioners Office will want to see
and providing that information in a logical format
at the earliest possible opportunity.
When we deal with an application on behalf of
a client, we try to pre-empt what the Central
Licensing Unit may request later on in the
process. If the Transport Manager is specified
on more than one licence, it is often better
to send a letter from the Transport Manager
explaining how he will maintain continuous and
effective management of the Transport with the
application rather than waiting for the request
for the letter to be made.
The key as ever with the process is to get the
application correct in the first place, whether
that is a paper or online submission.
This should hopefully lead to less man hours
for the Traffic Commissioner Staff and thereby
leading to a consideration of an application
much sooner by the actual Traffic Commissioner.
Furthermore, the new system will hopefully bring
in considerable time savings for the operators
in dealing with applications. There will be a
reduction in the number of original documents
being required (ie scanned copies of originals
will suffice) and interim applications should be
dealt with quicker.
Until the new system comes into effect,
operators are still expected to notify changes
to the Central Licensing Unit by post or email.
Ensure that you keep a delivery receipt for all
correspondence sent to the office. Also please
ensure that you mention all Operator Licence
Numbers that the changes are applicable to.
Under the current system, paper applications
are firstly sent or hand delivered to the Central
Licensing Unit. The application is then scanned
onto the system for the assigned case worker
to check. Currently this process takes around
1-2 weeks before a case worker even begins
to work on the application. Under the digital
system, the scanning process should be
We have all come across the occasions with
applications seemingly stuck in the ether
and the frustrated operator calling for advice
to see if matters can be moved on. Many
problems within the licensing system does
lay with applicants giving wrong or misleading
information as part of the licence applications or
not disclosing something on the form.
Scott Bell
T: 01254 828 300
E: scott.bell@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 15

Tachographs – an update on EU regulation
It is said that over time things
change. Tachographs and
technology have certainly changed,
at pace, over the last 9 years,
although not as fast as mobile
phones, tablets and computers
have evolved. Indeed, to some
degree digital tachographs still
languish in the dark ages.
However, for the first time since 1986 there
has been a major rewrite of the tachograph
legislation and on 2nd March 2015, some parts
of EU Regulation 165/2014 came into effect.
Just to complicate matters there is a transitional
period until the remainder of the Regulation
comes into effect on 2nd March 2016. During
that time the previous Regulation, 3821/85 (as
amended) will still apply.
As if transport and compliance is not confusing
enough!
So what has come into effect earlier this year
from EU Regulation 165/2014? Here is a snap
shot of some of the changes.
THE APPROVAL AND AUDITING OF
FITTERS, WORKSHOPS AND VEHICLE
MANUFACTURERS.
In essence the DVSA are to ensure that these
groups and individuals are competent and
reliable.
What are the DVSA to do?
They are to ensure that the individuals are
properly trained, there is the necessary
equipment available and that the fitters,
workshops and vehicle manufacturers are of
good repute.
How are the DVSA to do this?
This is to be done by way of auditing fitters and
workshops. The audits will take the form of one
of two methods.
The first method is that, at least every 2 years
fitters and workshops will be subject to an
audit of procedures and, in particular, the
security measures taken and the handling of
‘workshop cards’. (workshop cards are those
held by approved calibration staff). These ‘2
year’ audits do not require a visit from the DVSA
and therefore will in essence be desk-based
assessments.
The second method is that the DVSA,
annually, will be required to visit 10% of the
approved fitters and workshops. These visits
will be unannounced and will follow one of two
processes:
a. Witnessing a Nominated Technician
undertake a calibration in “real time”
b. Instructing and witnessing a Nominated
Technician to re-perform a calibration of
a very recently calibrated vehicle still in the
Approved Tachograph Centre.
Specific details can be found on the Tachograph
special notice 01-15, published by the DVSA in
March 2015.
ERRORS IN VEHICLE DETAILS ON THE
VEHICLE UNIT
As an aside and advice I have recently identified
that a small number of vehicles have had the
VIN number abbreviated on the VU.
With respect to VIN numbers we have seen
them entered on the VU in the following formats,
but only number 1 is legal:
1. XLEP5X2014516780
2. 4516780
3. 5X2014516780
The DVSA advice we have received on this
matter is “…… the VIN should not have been
reduced in length and should be recorded in
full so the calibration centre need to correct this
error as the calibration is technically null and
void and you would be subject to enforcement
action at the roadside if this was discovered.”
USE OF DRIVER CARDS AND RECORD
SHEETS
Much of this is identical to the previous
Regulation, however, it is worthwhile reinforcing
a few areas, covered by this Article, where
many drivers are still vulnerable to investigation,
prosecution and therefore fines.
Drivers may often be away from the vehicle when
they are unable to record on the tachograph.
This could be as a consequence of the vehicle
not being available when they arrive at work, the
vehicle requiring maintenance, the driver of the
vehicle undertaking work in the yard or in the
Transport Office, before or after driving a vehicle
on a specific date.
On those days, when operating under EU
Regulations, the record, either analogue or
digital must be a complete record of the driver’s
working day. Furthermore, if using a digital
vehicle and when, as a result of being away
from the vehicle, a driver is unable to use the
tachograph fitted to the vehicle, the driver must
enter the activity undertaken away from the
vehicle using the manual entry facility provided
for in the tachograph. Drivers must be trained
and make manual entries using the digital
tachograph to record their complete working
day. If using an analogue tachograph these
times must be recorded using the grid on the
reverse of the chart.
ATTESTATION FORMS
Furthermore, from 2nd March 2015, Member
States shall not impose on drivers a requirement
to present forms attesting to their activities while
away from the vehicle. However, Best Practice
would dictate that, particularly for drivers who
drive irregularly or who have been off sick or on
holiday attestation forms or similar are issued to
prove the driver has taken legal rest periods and
is available to drive.
EXEMPTIONS and DEROGATIONS
The following derogation has now become an
exemption and the distance extended from 50
kms to 100 kms. “Vehicles or combinations of
vehicles with a maximum permissible mass not
16 // Issue 18 www.backhousejones.co.uk

exceeding 7.5 tonnes used for carrying materials, equipment or machinery for the driver’s use in the
course of his work, and which are used only within a 100 km radius from the base of the undertaking
and on the condition that driving the vehicle does not constitute the driver’s main activity.” This
derogation is often abused, if delivering goods for another person to use, the driver is not exempt.
The 50 kms radius has also been extended to 100 km for other categories of vehicles including
those used for the carriage of live animals from farms to local markets and vice versa or from markets
to local slaughterhouses.
THE FUTURE
• Interface with Intelligent Transport Systems
It is important, therefore, that Operators are
prepared and drivers trained accordingly
to ensure that they are not vulnerable to
investigation and meet their responsibilities. A
review of the current knowledge, in particular
with respect to tachograph use is imperative to
ensure that we are all ready for March 2016.
On 2nd March 2016 the remainder of EU Regulation 165/2014 comes into effect; and this will
include the ‘Responsibility of transport undertakings” where drivers are to be ‘properly trained and
instructed as regards the correct functioning of tachographs, whether digital or analogue, shall make
regular checks to ensure that their drivers make correct use thereof, ….”
Manual entries are a huge weakness, particularly in the digital field, but this cannot be allowed to
continue otherwise the Operator will find himself liable.
Then over the 36 MONTHS AFTER IMPLEMENTATION OF 165/2014
• Recording of the position of the vehicle at certain points during the daily working period (at the
start and end of the working period and after every 3 hours of driving)
• Remote early detection of possible manipulation or misuse
Gordon J F Humphreys MSOE MIRTE
Managing Director and Senior Consultant,
Foster Tachographs
T: 01772-655155
E: gordon@fostertachographs.co.uk
tel: 01254 828 300 Issue 18 // 17

Do me a favour! - An accidental tenant
Are you parking some of your HGVs on a friend’s piece of land under an informal arrangement? Maybe, it is
your land and you are happy to be doing your friend a favour and making some cash for your business at
the same time? These arrangements are fairly common-place, but many operators are not aware of the legal
ramifications of what they are doing, until it is too late.
Get off my land!
If you are the landowner or operator leasing the
land it is worth thinking about how such informal
arrangements could affect your business.
What if you want to use the land at a later date
to expand or even move premises? This could
be more difficult than you realise, as you may
have inadvertently granted a business tenancy
which brings with it rights for the tenant such
as a right to stay known as security of tenure.
What if your friend keeps forgetting to pay the
rent? Formalising the arrangement would have
provided a solution in respect of these matters.
There could also be planning law issues.
How will the arrangement affect your operator’s
licence? If you already use the land yourself as
an operating centre, the increase in the number
of vehicles using the site may lead to local
residents making complaints to the Office of the
Traffic Commissioner. This could have a great
impact on your business.
Thanks very much!
If you are the friend using the land and paying
for the privilege, how will it affect your operator’s
licence? If your vehicles are normally parked
on the land it becomes an operating centre.
If the land is in the same Traffic Area in which
you hold your licence you will need to make an
application for major changes to your licence
and advertise the proposed use of the site in
a local newspaper which gives local residents/
businesses the right to object to the Traffic
Commissioner. If the land is in a Traffic Area
that you do not hold a licence then you would
have to apply for a new licence in that traffic
area if you are using the site for more than three
months.
These are just some of the issues that need to
be considered. There may be many more for
your particular situation.
Please don’t wait until something goes wrong
to come and talk to us about these sorts of
arrangements. Why not call us today to have
a no-obligation chat and see if there is anything
we can do to put your mind at rest.
Wendy Newbury
T: 01254 828 300
E: wendy.newbury@backhouses.co.uk
18 // Issue 18 www.backhousejones.co.uk

Beware the repairing covenants!
If you are proposing to lease
a property there are certain
obligations you must enter into
as Tenant. One of these is the
obligation to keep the property in
good repair and condition during
the term of the Lease. Normally
the Landlord requires the Tenant
to take up a “full repairing lease”
which indicates that the Tenant
has full responsibility for the repair
of the whole of the property.
The Tenant will also be directly responsible for
carrying out the repairs and bear the cost of any
repairs to it during the term of the Lease.
If the property forms part of a larger property
not only does the Tenant have the responsibility
for repairing that area which it has let from the
Landlord, it also makes the Tenant indirectly
responsible for the cost (or a proportion of the
cost) of repairs to the structure, exterior and
common parts of the property through a service
charge.
The Tenant could end up footing a large bill for
repair costs for which it shouldn’t in the first
place be liable.
So, what can you do to prevent this from
happening?:
(1) It is well worth looking closely at the words
which form this obligation to repair in the
Lease. You should note the following when
looking at the repairing clause:-
(a) The Tenant will usually be obliged to keep
the property “in repair”. This is also an
obligation to “put” the property into repair
if it is in disrepair at the start of the Lease.
It would therefore be prudent for any
Tenant to inspect the property (and the
building of which it forms part) for any
disrepair then assess any potential repair
costs which could then either be borne
directly by the Tenant or indirectly through
a service charge.
(b) Some Leases require the Tenant to keep
the premises in “good repair”; “good and
tenantable repair” or “substantial repair”.
These words do make the obligation on
the Tenant onerous.
(2) It is also always worth while to involve a
Solicitor early on to amend the clause in the
Lease so that the repair and maintenance is
of a lesser standard.
(3) Look at the particular building which the
Tenant is proposing to lease.
(a) Look at the state of the property and the
date of the Lease.
(b) Look at the terms of the Lease.
(c) Undertake a structural survey of the
property which could reveal any other
defects which are not visible to the naked
eye.
However, the best recommendation that could
be made to any prospective Tenant would
be to agree with the Landlord a Schedule
of Condition. This usually takes the form of
photographs being taken in the presence of
both parties and which can then be agreed at
the time and then annexed to the final version
of the Lease.
The Tenant would then be repairing and
maintaining the property to the standard as
shown in the photographs referred to in the
Schedule of Condition.
In the worse case scenario and if no legal
advice has been sought prior to the entering
into of the Lease and no Schedule of Condition
has been annexed to the Lease, then the
Tenant is obliged to maybe put the property
into a better state of repair and condition than
it originally was at the commencement of the
Lease.
This would probably arise on the termination of
the Lease. The Landlord can require a Schedule
of Dilapidations to be prepared which shows
the state of the condition of the property at that
time when the Lease is ending.
If the repairing covenant in the Lease has not
been suitably “watered down” then the Landlord
can insist on the most miniscule repairs to be
undertaken, for example the filling in of holes left
by nails in the wall after the removal of pictures
etc.
Unless and until such time as the property is put
back into pristine standard, the Tenant cannot
vacate the property. Such repairs could be
costly and could involve putting the property
into a better state of repair and condition than it
was before the Tenant actually occupied it!
Our advice is to see a Solicitor at the outset:
before the Lease Terms are agreed so as to
prevent any unnecessary costs.
Vans: Time for
compulsory
O-licensing?
news briefs
Vans are playing an increasingly important role
in the distribution business, but bypass most
of the strict regulations and rules governing
fitness to practice and safety that apply to
heavy goods operators.
On Britian’s roads, there are around three
million vans and this number is growing.
93%of all vans stopped by the DVSA at
the roadside each year are overloaded and
around two thirds have a serious mechanical
defect (statistics provided by the SMMT).
It has been suggested that if van operators fail
to improve their safety record and systems,
they too will become subject to the O-licensing
system. If this happens, it is estimated that
the cost would be approximately £2.1bn to
bring them into line.
tel: 01254 828 300 Issue 18 // 19

Directors: Are you aware of your obligations?
Becoming a director gives status
and a direct impact on the strategy
and success of a business - but
how free is a director to act alone?
What obligations and duties
should a director bear in mind?
The day-to-day management of a company is
delegated to the directors by its shareholders.
Directors are initially appointed by the
shareholders and can usually themselves
appoint additional directors up to any limit set
by the articles of association.
The decisions of the directors are taken
collectively by the board of directors. A director
cannot act as a director on his own unless only
one director has been appointed. Decisions are
either taken by majority vote at board meetings
or by the signing by all the directors of a written
resolution.
The director’s role and his powers are primarily
defined in the company’s articles and, if he is
also an employee, in his service contract.
The mere fact of appointment does not
normally give a director any executive powers.
Most directors are, however, also employees of
the company with specific powers delegated to
them. A managing director usually has extensive
powers to make day-to-day decisions on behalf
of the company. Other directors such as sales
directors or finance directors will have a more
limited role.
Directors owe a duty to the company and,
if insolvency threatens, to creditors. Certain
key duties of directors have been placed on
a statutory footing under the Companies Act
2006 (the “Act”). These duties are owed to the
company.
Directors are also subject to a number of other
statutory requirements and restrictions. These
include a duty to keep proper books and
records and restrictions on entering into certain
transactions with the company or accepting
loans from the company. Breach of these duties
and requirements can result in a director being
disqualified from acting as a director and in
many cases can lead to the director incurring
personal liability.
Powers and authority
The board
The directors act as a board but the board
may (if the articles permit, as they generally
will) delegate powers to a committee of board
members or to an individual director.
20 // Issue 18 www.backhousejones.co.uk

news briefs
Non-executive directors
Non-executive directors are, as their name
implies, directors to whom no executive powers
have been granted by the board. Although they
have no executive powers, they can vote at
board meetings and have the same duties as
executive directors.
Executive directors
Executive directors are generally employees
with specific powers delegated to them either
by a resolution of the board or under their
service contracts.
Managing directors
Most companies have a managing director
(sometimes called a chief executive). He is
granted more extensive executive powers by
the company’s articles or by board resolution.
Exceeding authority
Directors should not act outside the scope of
the powers delegated to them. Major contracts
and commitments should always be authorised
by board resolution. A director who exceeds his
powers (for example, by signing a contract not
authorised by the board) may incur personal
liability for the performance of the company’s
obligations under that contract.
• Duty to exercise independent judgment
• Duty to exercise reasonable care, skill and
diligence
• Duty to avoid conflicts of interest
• Duty not to accept benefits from third
parties
• Duty to declare interest in proposed
transactions or arrangements
Other (non-statutory) general duties
Other, non-statutory duties which a director
may owe to a company include a duty not to
misapply the company’s property and a duty of
confidentiality.
Director’s liabilities
Being a director brings with it a high degree of
responsibility and, increasingly, the risk of personal
liability. Directors are not generally personally liable
to third parties, unless they have given a personal
guarantee for the liabilities of the company.
However, various statutes have imposed personal
liability on directors in a wide range of situations,
including health and safety, environmental,
competition and securities matters.
New OCLS operator
self-service system
to make O-Licence
process quicker
The introduction of a new OLCS operator
self-service system which is currently being
developed is expected to speed up the
O-licence application process by 5 working
days and support the Traffic Commissioners
in their role according to Eastern Traffic
Commissioner Richard Turfitt.
The new system will make a full casework
database available electronically to the staff at
the Office of the Traffic Commissioner and will
also be likened to Companies House enabling
them to check records on companies and
directors. The system will also provide
guidance to operators to help reduce the
number of incomplete applications submitted
(which are time consuming for all involved).
It is expected that the system will deliver a
£16.7m benefit to the industry.
Operators are welcoming the improved
system which (subject to successful testing
security and other clearances) is expected to
be introduced to a group of operators at the
end of 2015.
If a director is liable for conduct amounting to
negligence, breach of duty, default or breach of
trust, the power to ratify such conduct lies with
the shareholders. The shareholder resolution
ratifying such conduct must be passed without
counting the votes of the director concerned (if a
shareholder) or those of any connected person.
General duties
A director’s general duties are owed to the
company and not to individual shareholders.
The Act codifies certain key duties, as follows:
• Duty to act within powers
• Duty to promote the success of the
company
Jennifer Bell
T: 01254 828 300
E: jennifer.bell@backhouses.co.uk
Number of trucks
on our roads have
increased
DfT figures on licensed vehicles show that
during 2014, Great Britain’s roads saw the
number of trucks over 3.5 tonnes GVW on
them rise by 2.8%since 2012 to 473,900.
This is however, still significantly less than the
510,800 we saw on our roads in 2007.
During 2014, licensed light goods vehicles
were, according to DfT figures, also up 3.5%
since 2013 to 3.47 million. Of the total licensed
light goods vehicles licensed at the end of
2014, 0.3% used gas, 0.1% were electric,
3.9% used petrol and 95.7% used diesel.
tel: 01254 828 300 Issue 18 // 21

Buying a second hand vehicle is like...
...a box of chocolates, you never
know what you’re gonna get!
As a business, purchasing a second hand vehicle
can prove to be a cheaper and more profitable
alternative to paying a lot more for a brand new
vehicle. However there are risks associated with
purchasing second hand vehicles which can
reverse this belief due to increased expenditure
when repairing faults which may result from
an inherent defect and which could ultimately
render the vehicle a write off.
You may think that the same archaic “buyer
beware” principle that applies in relation to
buying a property also applies to the purchase
of a second hand vehicle, however this is not
always the case. If you buy a used vehicle
from a dealer or a business that operates in
vehicle sales as its main course of business and
experience problems with it you are afforded
statutory rights under the Sale of Goods Act
1979 (“the Act”).
The Act states that the vehicle must be of a
“satisfactory quality” and “fit for purpose”, in
this article we concentrate on the grey area
that surrounds a vehicle being of “satisfactory
quality” as this is one of the most common
queries we get from businesses after they have
purchased a second hand vehicle.
In order to prove a vehicle sold to you was not
“of satisfactory quality” you need to show the
fault(s) were present when you purchased the
vehicle.
The reason a grey area exists in relation to the
purchase of a second hand vehicle and whether
it was of “satisfactory quality” at the point of sale
is because a determination needs to be made
between a fault arising as a result of general
wear and tear of the vehicle and faults which
existed at the point of sale or which may be
attributable to more inherent issues within the
vehicle. The approach by the Courts, when
determining claims of this nature, has been to
establish from the evidence available (generally
an experts report) and the age and mileage of
the vehicle.
The Courts take this approach because it has
been accepted that, by buying a second hand
vehicle, you pay a reduced price because you
accept that wear and tear to the vehicle exists
and therefore faults can arise, however the Court
also accepts that a vehicle is not of “satisfactory
quality” if it is sold to you with a fault that is not
drawn to your attention and which could have
an impact on use of the vehicle or indeed your
decision to have entered into the arrangement
in the first place.
If you can successfully show that a vehicle you
purchased was not of satisfactory quality when
sold to you, you can either seek a full refund,
replacement or repairs to make the vehicle of
satisfactory quality at a cost to the dealer. You may
also be able to recover other losses that you may
have suffered however these can be sometimes
difficult to prove and it is recommended that you
maintain records of any commercial opportunity
which may have passed you by as a result of an
unsatisfactory vehicle. Other losses may include
repairs which may have been already undertaken
to the vehicle or anything else that could result
from the purchase of the vehicle.
If you notice the fault with the vehicle within the
first six months of purchase then the onus is on
the dealer to prove that when it sold the vehicle
to you it was of satisfactory quality which means
practically speaking, the dealer would have to
prove the fault was not present at the time when
it sold the vehicle to you.
If you notice the fault after six months of
purchase then the onus is on you to show that
the vehicle was faulty when you purchased
it. It is, therefore, more clear cut to claim a
vehicle was not of “satisfactory quality” within
six months of purchase however, it is not
impossible to make this claim if a fault occurs
after six months and in this regard it is advisable
you purchase a second hand vehicle from
a reputable, established dealer and make a
reasoned, careful decision when deciding which
second hand vehicle to purchase.
We recommend you take the following steps:
• Always take the vehicle for a test drive and
dependant on the value of the vehicle, it may
be worth obtaining an independent experts/
mechanics opinion on the condition of the
vehicle.
• Make sure any verbal assurances about
the condition of the vehicle are put in
writing to you so you have evidence of the
representations made to you in respect of
the condition of the vehicle. For example,
if the dealer advises you the vehicle has
undergone a “complete engine rebuild”
ensure this is recorded in writing and receipts
for the work are provided so in the event of
a fault arising with the engine you can prove
this is a fault as opposed to wear and tear.
• If the dealer points out any faults to the
vehicle to you, ensure this is put in writing
with the full extent of the fault. For example,
if you buy a vehicle at a reduced price due
to damage to the body work but you receive
assurances that the engine and condition
of the internals of the vehicle are in good
condition and it is simply the paintwork
that needs repairing get this in writing so in
the event of a fault arising with the engine/
internals of the vehicle you can prove this is
a fault with the vehicle.
• If you do notice a fault with the vehicle
contact the dealer, in person, as soon as
possible to advise of the fault and make sure
you keep a record of all faults.
• If the dealer offers to fix the fault at its own
expense afford it the opportunity to do so.
• If the fault is fixed and you are not satisfied
after this, or if the dealer does not offer to fix
the fault, you can reject the vehicle as long
as you attempted to resolve the issue with
the dealer first.
• Make sure you formally reject the vehicle
in writing and if this is after six months of
purchase support this with an opinion from
an independent garage that the fault(s) were
present when the vehicle was sold to you.
• If the dealer refuses to accept your rejection
of the vehicle contact a Solicitor, who will
assist in your claim to reject the vehicle.
Sometimes a letter from a Solicitor can make
a dealer take a claim more seriously!
You should be aware that if you make the
decision to reject the vehicle and this is not
22 // Issue 18 www.backhousejones.co.uk

accepted by the dealer then you may be left in a
difficult financial position. By rejecting the vehicle
you are saying that it is not of “satisfactory
quality” and “not fit for purpose” and therefore
you will not be able to utilise the vehicle until
such time as the dispute is resolved and may
have to store this on your premises. In the event
that the vehicle is used after it has been rejected
this potentially could have a catastrophic effect
on your ability to claim losses through the Court
process.
It is difficult to predict how long you could be
without the use of the vehicle or recompense
for its value in these circumstances. Court
proceedings can take anything between 6
months to 2 years before they are resolved.
There are steps you can take to mitigate this
loss which may include the hiring of a suitable
alternative vehicle however given the length
of time these matters can take to resolve it
may be cheaper in the long run to purchase a
replacement vehicle and recover any losses or
additional costs as a result of this transaction.
There may be further complications if the vehicle
has been purchased with the assistance of a
finance company and they should be notified of
any issues immediately and seek legal advice
on the potential repercussions.
In summary, if you purchase a second hand
vehicle and faults arise with it you can resolve
the issue without footing the bill for the repairs
yourself as long as you follow the steps above.
In the event that a resolution is not easily
obtained with the dealer then you should seek
immediate legal advice.
Libby Ashton
T: 01254 828 300
E: libby.ashton@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 23

CJEU approve “discrimination by association
The decision of the Court of Justice of the
European Union (CJEU) in CHEZ Razpredelenie
Bulgaria C-83/14 is likely to have a significant
effect on UK discrimination law. In the case, the
CJEU ruled on an important point relating to the
interpretation of indirect discrimination. The Court
clarified that “discrimination by association”
applies not only to direct discrimination but
also to indirect discrimination. This decision
contrasts with the current understanding of
indirect discrimination in UK law and differs
from section 19 of the Equality Act 2010 which,
in employment law, requires that for a claim of
indirect discrimination to be successful the person
bringing the claim must share the particular
characteristic of the group disadvantaged by
the practice, criteria or provision in question. The
ruling of the CJEU is immediately binding on UK
Courts and overrides other national provisions of
law. Therefore, the decision marks a significant
change for UK discrimination law.
Facts of the Case
The claim was brought by a Bulgarian lady,
Ms Nikolova, who runs a shop in a district of
Bulgaria predominantly populated by Roma.
Ms Nikolova is not Roma herself. Her local
electricity supplier operates a policy whereby
fixed electricity meters are installed on electricity
poles at a height of 6m above the ground. This
is over 4m higher than the electricity meters
fitted in other areas and the electricity company
claimed this was due to incidents where boxes
had been tampered with and / or damaged.
Ms Nikolova complained that the height of the
meter prevented her from reading the meter
and assessing how much electricity she was
using. Ms Nikolova also believed that the
charges being applied were not reflective of her
actual consumption. She brought a complaint
to the Bulgarian Commission for Protection
against Discrimination (BCP) that she was
being discriminated against on the grounds of
her nationality. However, the BCP held that the
issue was not Ms Nikolova’s nationality; but her
ethnicity and held that, whilst she was not herself
Roma, she identified with the Roma people in
the area and so could suffer discrimination on
that basis.
The electricity company appealed this decision
and the Bulgarian appellate court referred a series
of questions to the CJEU. The first question is
of particular relevance to discrimination in UK
Law, and relates to who has standing to bring a
claim of indirect discrimination. The Court asked
the CJEU: “Despite not being of Roma origin,
was Ms Niklova able to bring a claim of indirect
discrimination?”
Decision
In its decision the CJEU placed emphasis on
the overarching aim of EU Law and the Race
Directive which is to eradicate all forms of
discrimination on the grounds of race and
ethnic origin. The Directive is intended to
benefit all persons and therefore should not be
interpreted narrowly so as to prevent persons
suffering a disadvantage, such as Ms Niklova,
from claiming protection.
The CJEU, therefore, decided that it was not
necessary for the person making a claim of
indirect discrimination to share the ethnicity of the
disadvantaged group provided that the person
suffered a disadvantage alongside those in the
24 // Issue 18 www.backhousejones.co.uk

” in the context of indirect discrimination
characteristic would have been entitled to bring
a claim in the county court for discrimination
under the Equality Act. The majority of claims
would be for indirect discrimination and
were limited to those who had the particular
characteristic. If the characteristic of disability
is considered, as a result of the CJEU’s decision
the rights to bring a claim may not be limited
to the disabled individuals themselves but may
also extend to other individuals who may be
travelling with disabled people such as carers,
parents, friends or other family members.
In the longer term, UK law is likely to require
amendments to bring it in line with the CJEU’s
ruling. However, employers and businesses
should be aware that the decision has immediate
effect in UK law. Therefore, it would be useful
to review and, if necessary, amend diversity
and equal opportunities policies to safeguard
against having to defend indirect discrimination
claims which may now be brought as a result of
the decision the CJEU.
disadvantaged ethnic group and the treatment
which caused this disadvantage stemmed from
a measure based on ethnic origin.
Comment
The decision of the court has the potential to
significantly impact on UK discrimination law.
Discrimination by association is a concept which
has already been recognised in UK law following
a decision of the CJEU in 2008, Coleman
v Attridge Law. However, discrimination by
association is now protected in the context of
indirect discrimination.
If the following example is considered, the
change will become apparent. Mr A is a male
employee and a single parent with child care
responsibilities. He feels that his employer’s
policy of requiring full-time workers for certain
positions puts him at a particular disadvantage
as compared to other workers do not have child
caring responsibilities. Prior to this decision, Mr
A would have struggled to successfully bring a
claim of indirect discrimination on the basis that
his claim would be on the grounds of sex and he
had to share the characteristic of the group put
at the disadvantage. In this example, it would
have been very difficult for Mr A to establish
that men are put at a particular disadvantage
as compared to women by the employer’s
policy. Conversely, a woman with exactly the
same child care responsibilities as Mr A might
have been successful in her claim as it would
be possible to show that the policy adversely
affects a disproportionate number of women as
compared to men. Prior to the court’s decision,
Mr A would not be able to make a claim based
on the provision being indirectly discriminatory
to woman. However, because of the ruling
Mr A can bring a claim on the basis that the
employer’s policy is indirectly discriminatory
to women and, although he is not himself a
woman, he suffers the same disadvantage
caused by the discriminatory provision.
The consequences of this decision will not
be limited to the employee and employer
relationship and is also likely to have an impact
on businesses within the service industry and
in particular bus operators. Prior to the CJEU
decision, an individual who may have a qualifying
James Lomax
T: 01254 828 300
E: james.lomax@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 25

Who can accompany an employee to a
disciplinary or grievance hearing?
A new, revised version of the Acas
Code of Practice 1 on Disciplinary
and Grievance Procedures has
come into effect.
Previously, the Code of practice gave guidance
that workers had the right to reasonably request
to be accompanied to a disciplinary or grievance
meeting by a work colleague or accredited trade
union representative.
Now, (following the case of Toal and another v
GB Oils Ltd) the Employment Appeal Tribunal
(“EAT”) has decided that a worker’s choice of
companion is an absolute right and does not
need to be reasonable.
The new Code and Guidance has been
amended so that:
• Employers must allow a worker to be
accompanied to a disciplinary or grievance
meeting by a fellow worker, trade union
representative or official
• The method in which the worker makes
the request must be ‘reasonable’, but their
actual choice of companion does not have
to be reasonable in the eyes of the employer
i.e. the employer cannot bar the companion
from attending
• Workers can change their mind over who
accompanies them
The maximum compensation payable to a
worker for failure to comply with the right to be
accompanied is two weeks’ pay.
Practical Implications
Employers need to be reasonable when
considering who is allowed to accompany an
employee to a meeting. Importantly, employers
can still reject anyone who is not one of the
employer’s workers or a trade union official or
representative – such as a lawyer or a relative.
• Employers can allow workers to be
accompanied by a person who falls outside
these categories
Steven Meyerhoff
T: 01254 828 300
E: steven.meyerhoff@backhouses.co.uk
26 // Issue 18 www.backhousejones.co.uk

Time’s running out for
SMEs to comply with
auto enrolment
If you run a small or medium sized business, you might hear a faint ticktock,
tick-tock in the background. That’s the sound of the pension’s
time bomb that could blow in the near future.
Auto enrolment was introduced over two years
ago and despite the complexities associated
with it, the biggest mistake employers can
make is leaving it too late.
It is an employer’s responsibility to enrol staff
into a good quality pension scheme that is well
run, offers value for money and protects their
employee’s retirement savings. Although this
sounds simple to achieve it takes preparation,
organisation, and most of all time.
Due to lack of resources (such as payroll and
HR teams), time is likely to hit SME’s hard when
starting their auto enrolment preparation. Even
businesses who have attempted to start early
can get side tracked by underestimating how
much is involved and how long it will take to get
ready, and this goes without the distraction of
getting on with the day to day running of the
business.
financial advice will ultimately deliver an educated
employer with a smooth implementation and
compliant workplace pension.
Our approach with our clients is simple.
Communication is key, from the outset we
implement a strategy with a timetable and
key responsibilities for us and the client. This
ensures ‘all boxes are ticked’ and that issues
or complications are identified early to allow
resolution, before it becomes a real last minute
problem.
That tick-tock you can hear is getting louder.
Time to start planning.
Employers should ideally start their auto
enrolment implementation strategy twelve
months in advance of their staging date, and at
the very least six months. The consequences
of not delivering a compliant scheme by the
required staging date, can result in a penalty
from The Pensions Regulator, going from a daily
rate of £50 escalating up to £10,000.
Auto enrolment is not just a pensions issue,
it is closely tied to payroll and HR matters.
Smooth interaction between all components
offers a better experience for all parties involved
and ensures the pension does not become a
permanent drain on profit, time and resource of
the business.
This can all seem daunting and complicated,
but planning early, and seeking independent
Matthew Bromley
Independent Financial Adviser,
Cowgill Holloway Wealth Management LLP
T: 01204 414 243
E: Matthew.Bromley@cowgills.co.uk
tel: 01254 828 300 Issue 18 // 27

Why we are going to be working longer…
The abolition of the default
retirement age of 65 was
introduced on the 6 April 2011,
when it became unlawful to
automatically enforce retirement
on an employee when they
reached the age of 65.
If employers compulsorily retire employees after
the 6 April 2011, this would be considered
unlawful direct age discrimination under Equality
Act 2010, unless the employer can show that
the decision to dismiss is objectively justified as
a proportionate means of achieving a legitimate
aim.
Why the abolition of the retirement age?
The then Labour government reviewed
the law, “to reflect the change in economic
circumstances since it was introduced”. For
some time it has been recognised that people
are living longer, the Department of Work and
Pensions acknowledged that work patterns
needed to change. In 2008, 16% of the
population was over 65, and this is predicted
to rise to 23% by 2033, highlighting that more
people are working longer. The changes
are reflecting a greater degree of urgency for
individuals to save for retirement and will change
the face of the workforce.
According to experts the average life expectancy
will be 83 years and as this is expected to rise,
the focus on pensions and retirement will be
an ever increasing issue. Financial advisors,
KPMG have advised that individuals ought to
carefully consider their finances for retirement.
Experts are warning that retirement planning
and employment planning are going to have
a significant impact on society as we see the
change in life expectancy rise.
The Department of Work and Pensions suggest
that life expectancy will be such that we can
expect to retire closer to 100 years of age.
Whether it is likely that workers can realistically
retire so late on in life, is yet to be seen, but
experts are proposing that this is possible
providing businesses consider more flexible
ways of working; which will mean changes in
working patterns will need to be at the focal
point of business planning.
Fair retirement dismissal
Dismissals attributed to age would be
considered to be direct discrimination unless
the relevant defences can be supported. The
question of whether an employer can lawfully
retire an employee, will be a matter of choice
as opposed to compulsion. Having said that,
where it can be objectively justified, or where
it falls within the ‘occupational requirement’
defence, compulsory retirement is still possible.
Therefore a fixed retirement age must be able
to show that the legitimate aim will be met, the
retirement age meets the aim and that the age
is a proportionate means of meeting that aim.
The occupational requirement defence considers
whether the legitimate aim corresponds to the
‘real business need’. In other words, when
justifying direct age discrimination, the employer
must be able to show that their legitimate aim
has some social policy or public interest benefit.
The direction is on ‘promoting inter-generational
fairness and dignity’. Examples of legitimate
aims include, promoting access to employment
for younger people, the efficient planning of the
departure and recruitment of staff, sharing out
employment opportunities fairly between the
generations, ensuring the mix of generations
of staff so as to promote the exchange of
experience and new ideas.
If an employer applies a fixed retirement age, they
must still be able to show that the dismissal is fair
and falls within the five potentially fair statutory
reasons. In some cases an employer will rely
upon Some Other Substantial Reason. The
ACAS guidance proposes that employers should
give ‘adequate notice’ to those employees
retiring, take account of overall planning and
organisation in advance of changes.
When considering the overall succession
planning of your work force, it is a good idea
to monitor and analyse age profile, look at any
recruitment planning, if there are retirement
peaks or imbalance in the age bands, then this
forms the basis of relevant overall planning. Any
collection of data should be anonymous, take
account of the Data Protection Act 1998 and
be aligned to any policies in place. In effect,
employers need to provide evidence to support
any decision to have a fixed retirement.
Given the predicated changes within our culture
in relation to longer working, employers will need
to avoid the pitfalls of discrimination claims, and
overall business planning is a productive way of
analysing and forecasting for the needs of the
business.
Retirement in the transport industry
The reality in the transport industry is that there
are very few circumstances under which a fixed
retirement age may be justified. This gives rise
to the question of how, for example, do you
deal with drivers who are in their late 70’s, who
would ordinarily have retired at 65, but continue
to work beyond retirement age and about whom
you have some concerns over their ability to
carry out their role. The most important point
to note is that in order to avoid a discrimination
claim, an employer cannot compulsorily retire an
employee.
However, an alternative route to consider is the
performance management process. Whilst
this process can feel laboured, capability is a
fair reason for dismissal and can be used to
terminate the employment of any driver who is
not meeting the standards required of their role.
The employees performance would have to be
monitored of course and any form of evidence
– be it medical or otherwise – is very helpful in
determining the outcome of a performance
process.
Perhaps most importantly – and something that
is often overlooked – is that it is vital to actually
speak to an employee frankly but sensitively with
regard to their future plans. Employers are not
prevented from sitting down with an employee
and considering whether offering flexible or
part time working would suit their needs as
well as that of the employer as the employee
approaches retirement.
28 // Issue 18 www.backhousejones.co.uk

Either way, it is always advisable to consider
taking legal advice before taking any decisions
about retirement in order to avoid claims and to
maintain morale within the workforce.
Maria Farnell
T: 01254 828 300
E: maria.farnell@backhouses.co.uk
tel: 01254 828 300 Issue 18 // 29

Holiday pay – more changes ahead?
In our last edition of Backchat,
we discussed the seismic
changes that had come about
in the calculation of holiday pay
since the EAT judgment of Bear
Scotland v Fulton & Others at the
end of 2014. Ordinarily we would
be reluctant to go over old ground,
but this subject, it seems, is still
topical and some further changes
brought about by recent case
law – including that concerning
commission – demands another
look at the issues surrounding
holiday pay.
We pick up the timeline from November
2014 and end with the latest news and focus
particularly on the issue of commission and
whether or not it should be included in the
calculation of holiday pay.
Holiday Pay and Commission – Lock v
British Gas
An employment tribunal has held that it is
necessary to add words to the Working Time
Regulations 1998 (“WTR”) to give effect to
the Working Time Directive. In particular, the
week’s pay provisions of the Employment
Rights Act 1996 should be re-written for the
purposes of the Working Time Regulations
so that commission and similar payments are
included in holiday pay.
The decision, that commission should be
taken into account when calculating holiday
pay (even if unearned), will have wide reaching
ramifications on the transport industry.
Facts
Mr Lock was employed by British Gas Trading
Ltd (British Gas) as an internal energy sales
consultant. His pay consists of two elements,
basic pay and commission. Approximately half
of his pay is made up by commission based on
sales. British Gas calculated Mr Lock’s annual
leave at his basic rate. Mr Lock felt this was
unfair given that he could not earn commission
when he was on holiday and therefore his pay
would be lower than what he would ordinarily
receive.
Mr Lock claimed unpaid holiday pay in the
Employment Tribunal. The Tribunal referred
the matter to the European Court of Justice to
determine the issue.
The CJEU Decision
The view taken by the Advocate General was
that the right to annual leave is an important
principle of EU law. Employees should not be
deterred from taking holiday. The facts in this
case were that that Mr Lock would be put at
a financial disadvantage because he was on
holiday and unable to earn commission. As
payment of commission was intrinsically linked
to the performance of Mr Lock’s tasks under his
contract of employment, it was recommended
that commission should be taken into account
when calculating holiday pay even if the
commission had not been earned.
The Advocate General’s view was that it was for
the national court to determine how the amount
of holiday pay reflecting commission should be
calculated. However, he considered that taking
the average amount received by the worker
over a representative period, for example, the
previous 12 months, would be appropriate.
The Employment Tribunal
The case was then remitted back to the
Employment Tribunal which then determined the
extent to which the WTR 1998 could be read
consistently with EU law, and if not, whether
words could and should be added in, interpreting
30 // Issue 18 www.backhousejones.co.uk

British Gas appeals
those regulations so that the calculation of a
week’s pay conformed with EU law.
The Tribunal added the following paragraph (e)
to regulation 16(3) of the WTR 1998:
“(e) as if, in the case of the entitlement
under regulation 13, a worker with normal
working hours whose remuneration includes
commission or similar payments shall be
deemed to have remuneration which varies
with the amount of work done for the purposes
of section 221.”
Therefore, if the pay packet an employee
receives includes any form of commission
payment or variable pay based on performance
which is not truly discretionary, it is now likely
that these should be included in the calculation
of the employee’s holiday pay.
The latest position is that British Gas has
appealed the decision on the basis:
• commission and non-guaranteed overtime
are dealt with under different provisions and
use different language, and the employment
tribunal incorrectly concluded that Bear
Scotland Ltd & others v Fulton & Others, a
case about overtime, has any bearing on the
outcome of Lock; and
• in any event, the EAT in Bear Scotland
incorrectly concluded that UK domestic
legislation can be interpreted purposively to
give effect to EU law.
The case is to be heard at the end of 2015, so
watch out for the outcome in the next edition of
Backchat. Our early view is that British Gas is
unlikely to be successful given the English Courts
have a history of following European decisions.
As such, we expect the current position to
remain which is that both non-guaranteed
overtime and commission should be included in
the calculation of holiday pay.
Rafia Ahmad
T: 01254 828 300
E: rafia.ahmad@backhouses.co.uk
So where does that leave
voluntary overtime?
Voluntary overtime should ‘in principle’
be included in holiday pay
The decision in Bear Scotland v Fulton &
Others has provided answers on the matter
of non-guaranteed overtime. However
Bear Scotland left a number of questions
unanswered, one of which was whether
voluntary overtime (overtime which the
employee is not obliged to offer, and if
offered, the employee is not obliged to work)
should be included in the calculation of
holiday pay.
The Northern Irish case of Patterson
v Castlereagh Borough Council has
determined that “in principle there is no
reason why voluntary overtime should not
be included as a part of a determination of
entitlement to paid annual leave”. The Court
did however did state that this was not a
blanket approach to voluntary overtime and
that any decision would be a question of fact
in each particular case as to whether the
voluntary overtime should be included, and
this will depend upon whether the overtime is
worked with such regularity so as to become
part of the employee’s normal remuneration.
Like the comments made in Bear Scotland,
the Northern Ireland court viewed that if
voluntary overtime is worked with such
regularity then the employee will come to
expect a certain level of pay, which includes
that overtime. Where this is the case, the
overtime should be included in holiday pay.
This case is a Northern Ireland Court of
Appeal case and therefore not binding on
courts and tribunals in England and Wales,
but does have persuasive force and may
have influence on future court decisions in
England and Wales. For now, we shall have
to watch this space.
tel: 01254 828 300 Issue 18 // 31

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