The Catch 22 facing transport directors

Managing Partner | Moore Blatch

I wonder how buoyant the recruitment market is for transport directors these days.  This is a sector overburdened with legislation, demanding clients, compliance issues and now to top it all, fines faced by international operators and their drivers when they unwittingly import illegal immigrants.  Why would any sane person set up a haulage firm?

A look at the legislation is enough to put anyone off – to name but a few, we have the Health and Safety at Work Act 1974, various health and safety regulations, the Road Traffic Act, the Goods Vehicle (Licensing of Operators) Act 1995, the Vehicle Licensing Regulations, undertakings given to the Traffic Commissioner’s Office, the lawful maintenance and running of all the vehicles, drivers’ hours regulations and last but not least, new requirements for mirrors and sideguard rails for those travelling into London.

To make things worse, the Government now stands accused of treating haulage firms as cash cows, with fines of £2,000 per illegal immigrant found on vehicles.  These fines are placing drivers and operators in significant hardship and leading to some companies declining to cross the Channel.  Despite operators’ insistence that their vehicles park overnight at least 100 kilometres or so from Calais, once they arrive at the port they are met by migrants whose determination, often unbeknown to drivers, is breath taking.  Vehicles are then searched with dogs and high tech equipment, illegal immigrants are found and significant penalties imposed.

Where does this leave directors with regards to the duty they owe their drivers?  Government guidelines call on “responsible hauliers” to provide drivers with written instructions on how to prevent access.  Systems should be robust, decent security devices fitted and drivers should check around, in and on the vehicle.

But the guidelines do not tell the driver what to do when he finds somebody attempting to climb inside.  Should he physically try to stop him?  We have heard of knives being pulled on innocent drivers trying to adhere to guidelines.

Here is the catch 22.  A driver ignores the guidelines, and both the employer and the driver found to be carrying illegals will be fined.  The driver interferes and runs the risk of ending up in hospital, of loss of income and a vehicle stranded abroad.

It gets worse.  A driver instructed by the employer to prevent access to the immigrant, in support of the government guidelines and injured in the process, might be able to bring a civil claim for compensation.  The employer faces a stark choice; be fined for carrying illegals, or sued by employees.

How does an employer fulfil his duty to provide a safe working environment for drivers, when conflict might occur?  Once back in the UK, an injured driver may find that he can sue you for any lost earnings and for compensation for injuries sustained in trying to protect his lorry.  The driver might be able to take action through the Criminal Injuries Compensation scheme, but this would be a very long-winded procedure.  It is a slow enough process dealing with the CICA in England alone, let alone working in conjunction with a European counterpart.

In my view, to mitigate the risk of fines or claims for compensation, transport directors should follow government guidelines, give clear instructions to drivers and advise them not to place themselves in danger.