Although many transport managers will love their jobs, what is the position if a transport manager does the job for the love it, rather than being paid?
These questions have recently been raised by a case heard before the Upper Tribunal. The case involved a PSV operator who had a transport manager who did the job on a voluntary basis. There was no contract of employment between the two and neither was there any form of remuneration.
At the public inquiry, the Traffic Commissioner held that the company couldn’t satisfy the requirement to be professionally competent, as it didn’t have a valid transport manager and that the person who had been purported to fill the role was not and never had been a transport manager. The company appealed. At the appeal, the Upper Tribunal looked at what the legal requirements were. It started by looking at the history of the drafting of the 2009 EU Regulation. Initially in the first draft, a transport manager was someone who “was employed and remunerated by the undertaking or, if the undertaking is a natural person, be that same person”. That was subsequently amended as, for it to be limited to someone who was both employed and remunerated, would prevent certain individuals from fulfilling the role of transport manager, as they might receive dividends rather than pay. The amended version referred to there being a “genuine link to the undertaking, such as an employee, owner or shareholder or administering it”.
Can a “genuine link” include someone who, in effect is a volunteer? The court decided that it meant someone who had a genuine commitment or stake in the business. This would cover both an employee and the owner of the business. But a pure volunteer can decide at a moment’s notice to have no further dealings with the operator and decide not to perform tasks. There is nothing that the operator could do about it. The court therefore decided that in such circumstances a volunteer can not properly be designated as a transport manager.
The decision puts into question the position of family members who act as a transport manager. Quite often a family member, who is not either the owner of the business or an employee will offer their services as transport manager. This ruling suggests that performing the role out of “mere love and kindness” is not sufficient and that there needs to be a more formal relationship.