"I guess that means I have to keep records to prove that I do not have to keep records!"
We small businessmen are expected to take up the slack when 500,000 public sector jobs are cut over the next few years. This is a daunting task for any business, but particularly for the Pitchcare readership's type of business that is already being stressed by two harsh winter periods and whose customer base includes a substantial chunk of local authority work.
The task of maintaining the status quo is becoming ever more difficult as the jobsworths swarm around us and, in particular, the many of us who employ mobile workers and workers who drive as part of their employment.
I have grumped previously about over-zealous Health and Safety officers, the excessive burden of employment legislation, the evils of VOSA and tachographs. Well, here is my latest encounter, which started out by reading the following article:
A new rule requiring drivers with penalty points to submit their licence for endorsement within 28 days rather than 12 months, has led to warnings that employers must introduce rigorous checks or face criminal charges.
"If the employer has not got a licence checking system he could face a charge of corporate manslaughter if a vehicle (driven by an employee) who has an invalid licence is involved in a fatal accident," says Ian Gallagher, policy manager for licence and vehicle registration at the Freight Transport Association.
(I added the bold wording as vehicles do not have licences, but we know what he means, don't we?)
From 7 November, drivers who receive penalty points must present their licence at court or send it to the DVLA within 28 days for endorsement, rather than 12 months.
"We made the change because there was an increase in drivers not having their licences endorsed," says a DVLA spokeswoman.
(Hopefully this means just those who have committed an endorsable offence)
"Employers of Drivers should be regularly checking licences," says Lucy Wood, transport solicitor at Rothera Dowson. "A revoked licence will invalidate the driver's insurance, although not third-party cover. The operator could be charged with a 'permitting offence'." She added "that companies should ask their drivers to sign a mandate allowing them to check their licences with the DVLA."
A 'permitting offence' holds the employer vicariously and criminally liable for causing or permitting an offence, whether by his actions or inaction. Penalties are up to £5000, which is about 50 or 60 times what the average first time shoplifter gets fined.
What's going on here, or are employers just considered as an easy target?
When I asked just what an employer had to do to ensure that his drivers were aware that he, the employer, did not approve of any criminal activity being carried out by the employee whilst he was at work, I got a list, about five sheets long, listing policies that ban each and every possible offence an employee might commit, ranging from mobile phone use whilst driving, to not wearing a seatbelt, and even a suggestion that an employer should, to be certain the driver cannot claim ignorance of the rules of the road, make a copy of the highway code available.
The FSB legal department considers that "All this was not certain to limit the employer's vicarious liability for his employees actions, but would be seen in a good light by a judge should such a prosecution take place."
Doing nothing to check licence validity makes you automatically liable for any offence(s) by your employees involving the misuse of their licence entitlement whilst in your employment.
This interpretation of the law means that the employer has to take positive action to ensure that his employee drivers are driving within their licence entitlement when at work.
So, how does an employer check that the licence they have seen and copied on to each driver's personnel file is still valid?
The direct approach to the DVLA, by asking to check if a named driver has a valid licence is, quite rightly, blocked by the Data Protection Act.
When legislation requires that employers, on pain of possible manslaughter charges, check data that cannot be viewed simply for the asking, there has to be a solution.
The D796 form is the start of the process. In it the employee driver agrees to permit the DVLA to give details of his licence when his employer asks for the information.
Should the employee refuse, there is no way of compelling him to waive his right to privacy of this data, and I am not going to try to explain to an employment tribunal that I dismissed an otherwise excellent employee just because he refused to release the data about his licence.
That solution requires either -
An expensive licence checking bureau, where there is an initial setup charge of several hundred pounds, and then a charge of between £7.50 and £10 for each driver checked. Now the word 'regularly' is used, and what the blazes does that mean? Monthly, bi-monthly, quarterly, half yearly or yearly?. Quarterly will cost £40 per driver per year, on top of the annual subscription, giving an added overhead of over £600 for my small operation.
Or, dealing with the DVLA direct. I chose this route and now regret every minute of the time I wasted. The DVLA does not answer sensible telephone calls!
The direct line to the DVLA is an automated press 1 for this, press 2 for that system, without a general enquiries option! I was stopped in my tracks, so I went through to driver licence queries.
I gave my name and address. I was then asked for my date of birth and refused to give it because it was irrelevant to my query.
"Stop looking at your computer screen for answers and listen to my question," I said, "I have two drivers whose licence status I have to check"….
"Sorry sir we cannot reveal .........."
"Hold on, I have not finished yet. I have a form D796, which is a driver's consent form, allowing you to release their information to me. What I want to know is where I get the account number and reference number required by the boxes on the form, where I send the form when it is complete and what fee is payable?"
"I am sorry sir; my computer will not let me go forward without your date of birth."
"Forget the computer: Do you know what a D796 form is?
"Just a minute sir, my manager is now taking over this call."
A different person comes on the telephone and exercises her managerial muscles. "I hear that you want information about fees?"
"Well yes," I replied, "as well as other things." Mistake!
Seizing on my slight pause, the manager leapt in with, "I am putting you through to our fees section"
"Hold on a minute ..."
Brrrrrrr, and then the fees office auto reply comes on the line.
"Sorry, the office is closed. Our office hours are from 0900 to 1200 Monday to Friday."
Click: That was it, the line was disconnected.
Oh, what the hell. Who gives a damn anymore? I have tried. I have my forms but the civil SERVANTS are just shunting me about.
There followed dark thoughts about strangling the odd DVLA employee. See you all in the nick later! Now, how much was that licence check bureau?
So, I wrote to the DVLA: An email was received, by return, stating that the DVLA had fifteen working days in which to reply. Finally, I got a reply, stick the forms in an envelope, with a cheque for £5 for each form, quote the emailed reference number and send it off to an address in Swansea.
I also suggested that a virtual button on the call centre video screen toolbar, labelled D796 process, that retrieves exactly this short sharp accurate instruction, would have saved a great deal of hassle. I await a reply.
Next comes the Transport Working Time Directive. I have to prove that my employees - mobile workers to a man - working more than eleven days mobile in the last seventeen weeks - are compliant with the Transport Working Time Directive, the latest bit of social engineering legislation to come from the overpaid interfering idiots in Brussels.
However, hang on; if they are not mobile, for whatever reason, they do not need to keep records. How then, can I prove they have not been mobile for more than the qualifying eleven days, when there are no records required? I guess that means I have to keep records to prove that I do not have to keep records.
That situation is worthy of Yossarian and Doc Daneeka in Catch 22.
My men never work excessive hours, rarely work at the weekends and they take adequate breaks of their own choosing. I am, perhaps, a strange employer in that I pay the same wage each and every week, regardless of the hours worked, provided that the work gets done and is done to a high standard.
My TWTD records are, therefore, based solely on the working time of the men who record their hours in a simple diary. The diary entries could be complete and utter hokum but, true or not, they are regarded as proof of compliance. So, regardless of my inability to confirm the veracity of the records, I have got to issue diaries and check, week by week, that entries are being made and that the average working time, over the previous seventeen weeks, does not exceed forty-eight hours, and that no-one has worked over sixty hours in any one week.
You will not be surprised that, as my men know the rules and none is stupid enough to incriminate himself, there has not been a single incidence of a failure to comply with the rules since, and indeed before, the rules came in. So, why do I have to go on wasting time and effort proving that they are compliant? Is it just in case I suddenly change from being a benevolent, easy going boss into a fiend who runs a sweat shop?
However, his Bigness in Brussels has decreed that, if I cannot prove I comply with his regulations, I am guilty of failing to keep adequate records and can be fined.
Incidentally, as Terrain's nominal MD, I can work myself to death as the rules do not apply to "managing executives" who can freely decide how many hours they wish to work.
My men and I have averaged about five hours a day since the snow hit, all, I might add, at base doing repairs, rebuilds, painting, clearing my garden of leaves, trimming hedges, painting fences etc. etc. I have tried everything to find work for them during this bleak, frozen and snow bound period.
I could have simply laid them off without pay until the weather broke but, being the caring employer that I am, they were on full wages, even when working twenty-five hours or less a week with absolutely zero hours driving - and yet I still have to record their hours for the TWTD.
What utter nonsense!
It is just this sort of time wasting over-regulation that is strangling small businesses like mine, that may divert my attention from providing the very best service I can as I strive to keep people in work in these difficult times.