Free Traffic Legal Advice
General discussion => The Flame Pit => Topic started by: Homer on December 04, 2024, 03:09:52 pm
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In light of the information regarding the disqualifications: These should have been reported to the TC by his employer (part of the Operator Licence obligations). Was he employed at these times? Although he has been punished the TC still has the power to revoke his vocational entitlement, his PCV licence. Was the TC ever informed? If not then it is unlikely the TC would know.
I think your son should seek some specialist advice before attending the meeting. I'll message you some details of somebody who might be able to help.
The 6 points and revocation happened since he left his previous employer but somehow the TC is aware as it was mentioned on the letter.
Revocation applies to new drivers and is usually related to passing a car test. Did he also obtain a PCV entitlement within those first two years or have I misread something somewhere?
So he passed his car driving licence and then sat tests for a PCV licence through his previous employer passed and began working for them then after he was dismissed for using a phone whilst driving he attained 6 points and his car licence was revoked which he then sat tests to regain his car licence after which he began working for this current employer
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No I don't think he did. But from what I've just read in the statutory guidance link I just posted above, the previous should have been mentioned. 2 lots of speeding, then a mobile phone offence (although not reported as a crime) could stir up a hornet's nest. It seems the lightest punishment the TC can give if he decides action needs to be taken is a written warning. But they tend to be harsh on mobile phone use.
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In light of the information regarding the disqualifications: These should have been reported to the TC by his employer (part of the Operator Licence obligations). Was he employed at these times? Although he has been punished the TC still has the power to revoke his vocational entitlement, his PCV licence. Was the TC ever informed? If not then it is unlikely the TC would know.
I think your son should seek some specialist advice before attending the meeting. I'll message you some details of somebody who might be able to help.
The 6 points and revocation happened since he left his previous employer but somehow the TC is aware as it was mentioned on the letter.
Revocation applies to new drivers and is usually related to passing a car test. Did he also obtain a PCV entitlement within those first two years or have I misread something somewhere?
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The TC certainly does have access to the DVLA database as part of his statutory regulatory duty. Failing to report traffic violations not committed in connection with a driving job can attract the TC's attention if one connected with the driving job occurs. It could be that the TC will discover his "previous" and decide he is not a fit and proper person to hold a vocational licence.
Personally I find that even a second's distraction when driving anything is a second too long with eyes off the road. How people can take time to gaze at a mobile phone for whatever reason can cause serious problems.
This maybe useful:https://www.legislation.gov.uk/uksi/2022/81/pdfs/uksiem_20220081_en.pdf
There's also this statutory guidance fr TCs on driver conduct. s52-75 seem to deal with our friend's case here.https://assets.publishing.service.gov.uk/media/65956a19614fa2000df3a865/Stat_Doc_6_Driver_Conduct_-_Version_11.0.pdf
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In the light of the points for speeding. I suspect the TC Will not offer much sympathy or leeway in this case. Which is unfortunate. I'm not sure exactly how they know, but I suspect they will have access to all the license databases and will know of every endorsement a driver in front of them has.
Also one more piece of advice, Install teams on your device and make sure everything is working BEFORE you try to log onto the meeting. Teams is awful if you don't set it up right and plenty of folks I have worked with have missed important meetings because they did not set up teams before use.
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In light of the information regarding the disqualifications: These should have been reported to the TC by his employer (part of the Operator Licence obligations). Was he employed at these times? Although he has been punished the TC still has the power to revoke his vocational entitlement, his PCV licence. Was the TC ever informed? If not then it is unlikely the TC would know.
I think your son should seek some specialist advice before attending the meeting. I'll message you some details of somebody who might be able to help.
The 6 points and revocation happened since he left his previous employer but somehow the TC is aware as it was mentioned on the letter.
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In light of the information regarding the disqualifications: These should have been reported to the TC by his employer (part of the Operator Licence obligations). Was he employed at these times? Although he has been punished the TC still has the power to revoke his vocational entitlement, his PCV licence. Was the TC ever informed? If not then it is unlikely the TC would know.
I think your son should seek some specialist advice before attending the meeting. I'll message you some details of somebody who might be able to help.
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It is a little daft, but to be fair the parent's come for help, rather then to see his lad get bashed for it. Couldn't say I never did anything daft driving a bus. Also Roy was right, you wait for one and three come along at once. Very on point
Either way. TL:DR of the whole post
Be humble to the TC
License suspension is likely
Learn from the experience
Ensure you speak to your current employer to ensure they know what's going on as it may affect current employment
Do NOT skip the meeting
Good luck
Thank you that is most helpful advice
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Yes, most have had to add that clause to their contracts of employment and have had to assure the tC that it has been done, as well as having a sign in the drivers cab area stating the obvious as well. The CCTV like Lytx and others can immediately pick up when it looks like the driver is holding a phone. It goes to "the cloud" and the employer is informed almost immediately.It also records the last 30 seconds of driving but writes over it unless there is an incident which triggers Lytx, when it then saves the last 3 minutes IIRC.
If there is an incident the driver can press a button in the cab to make sure the last 3 minutes is saved and it will continue recording sound as well as vision. Very helpful if there's an RTC and the errant driver get on the bus and starts having a go at the bus driver! I've found that very useful when it's happened to me a couple of times. I simply sit in the cab, press the red button, and when Mr Angry spouts off I simply inform him that everything he says is on camera and is being recorded. It can also work against the bus driver though as it has in this case.
Tell your mate not to waste money on a solictor.
Yes I believe it was this sort of technology in the coach which caught him, I was considering solicitors because there is a lot at stake here, losing his PCV will mean losing his livelihood :'(
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"if he looked at the phone but didn't touch it, that would be no different imo to looking at any other instrument."
But the offence is using the phone, not touching it. And there is a specific offence prohibiting the use of a hand-held phone whilst there isn't one prohibiting the use of (say) a speedometer.
I don't know very much about the work of the Traffic Commissioner and I assumed that any action taken by him would be following a conviction. But it seems not. From the same document this under the "Standard of Proof":
"In the vast majority of driver conduct cases, a traffic commissioner will be able to proceed on the basis of the facts following a conviction, fixed penalty, an endorsement or an admission of guilt. However, where no such findings have been made, the standard of proof required (in such civil proceedings) is the balance of probabilities, but the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."
And this under "Double Jeopardy":
"The concept of double jeopardy is sometimes raised in relation to traffic commissioner led regulatory action taking place in parallel with criminal proceedings. However, the principle of double jeopardy does not apply. Case law clearly indicates that regulation would be turned on its head if disciplinary proceedings could only be taken in the less serious of cases, where there are no concurrent criminal proceedings. However, if a traffic commissioner decides to proceed in advance of the criminal proceedings elaborate steps may have to be taken to protect the fairness of those proceedings. Ultimately the decision whether or not to continue is one for the traffic commissioner hearing the matter."
Perhaps Roy can help is out.
As he had already been punished for the speeding on 2 occasions with a total of 6 points and fines which ultimately cost him his car licence which meant he had to resit theory and practical car tests does this mean he can no longer be punished for this? Or could this still be taken into account along with the touching/ using phone whilst driving in a PCV?
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Has your son really only had 7 days notice?
Yes letter arrived this week advising hearing on Microsoft Teams is next week
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So the TC is an interesting one. Not been in front of them myself (I drove PCV and work elsewhere in the industry now) But have had to study them and learn for CPC related reasons. One thing I would say off the beat, is TC driver hearings are generally open to the public, so if you want to go with your Son to watch what goes on, you can do (unless it states it's closed doors on the day) and there's the possibly that he may not be speaking to the actual TC, but a deputy on the day. Deputy's have the same power as the TC itself mind, so that point's rather moot.
The fact your son was driving and I assume, moving at the time will make this most likely lean towards as Newjudge said, towards the 4 week period. Length of service may come into account too with the TC potentially being more harsh based on less experience. One driver I spoke to who had been in front of the TC for mobile phone use (Looking at a bus stop, doors open handbrake on) was given a ban of 5 days instead of 4 weeks due to 27 years of service with no issues, this particular issue also being a report from the company (Most companies are obliged to inform the TC of these actions as part of operator license related duties)
Not really sure of anything else truth be told, I made an account just to respond to this post :)
Firstly thank you for taking the time out to make an account just to respond to my post (https://emoji.tapatalk-cdn.com/emoji120.png)
The hearing is said to be on Microsoft Teams so not in person (not sure why) the vehicle was moving at 60mph and the offence was interacting (touching) a phone at 60mp, the looking down was what triggered the camera as it thought he was falling asleep, he also has in the past year collected 6 points on his normal drivers licence from speeding in his car on 2 separate occasions which as he had newly passed and gained a full driving licence within 2 years it was revoked, he then was not allowed to drive until he re-sat the theory and practical driving tests which he eventually did after some months and recently managed to find another job where he has been working for just a few weeks.
Yes very stupid things to do but sadly we can no longer give the kids a clip round the ear just hope that they have learnt from their mistakes and do better. He has lost a lot in terms of a well paid job and then his licence which has cost time and money so hopefully he has learnt enough lessons to not repeat them!
Thank you to all those that have given non-judgmental advice it is much appreciated.
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It is a little daft, but to be fair the parent's come for help, rather then to see his lad get bashed for it. Couldn't say I never did anything daft driving a bus. Also Roy was right, you wait for one and three come along at once. Very on point
Either way. TL:DR of the whole post
Be humble to the TC
License suspension is likely
Learn from the experience
Ensure you speak to your current employer to ensure they know what's going on as it may affect current employment
Do NOT skip the meeting
Good luck
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Some people are that daft. A bit like the lorry drivers who fail to relise the feds use artic tractor units so see into their cabs. :)
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Never mind whether he was fiddling with the phone or not it would have been obvious to anyone viewing an image or video that he was listening on headphones. How could he be so stupid as to think that it would OK?
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See my explanation above. "The system", depending on type fitted, does it automatically. The company sees the footage soon after "the event". See this link for a better explanation. There's other variations of the same thing out there. Plus the digital tacho (if fitted) sends a constant data stream back to "the system" which can be picked up by enforcement officers on the move.
At least with the TC I don't think he can fine drivers for such offences. But what he can do can be worse than a fine, PSV/HGV licence revoked.
I understand how the systems work, however if the event was flagged up by a third party report of bad driving rather than a system generated warning the outcome in front of the TC could be markedly worse.
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See my explanation above. "The system", depending on type fitted, does it automatically. The company sees the footage soon after "the event". See this link for a better explanation. There's other variations of the same thing out there. Plus the digital tacho (if fitted) sends a constant data stream back to "the system" which can be picked up by enforcement officers on the move.
At least with the TC I don't think he can fine drivers for such offences. But what he can do can be worse than a fine, PSV/HGV licence revoked.
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Questions for the OP
If your son was filmed by the in vehicle camera what event triggered alert for the camera? Was it the fact that he was continually looking down and it thought he was falling asleep? (A lot of modern HGV/PSV have attention monitoring built in) Or did a driving event such as harsh braking trigger it. Or was your son reported by a third party such as another driver or worse still a passenger on the coach which then lead to the camera being checked.
The company should have robust procedures for viewing the footage and for its further use ICO guidance (https://ico.org.uk/for-organisations/advice-for-small-organisations/whats-new/blogs/dashcams-and-uk-gdpr-what-small-businesses-need-to-know/). Clearly they had enough to dismiss him. What made them check it?
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Yes, most have had to add that clause to their contracts of employment and have had to assure the tC that it has been done, as well as having a sign in the drivers cab area stating the obvious as well. The CCTV like Lytx and others can immediately pick up when it looks like the driver is holding a phone. It goes to "the cloud" and the employer is informed almost immediately.It also records the last 30 seconds of driving but writes over it unless there is an incident which triggers Lytx, when it then saves the last 3 minutes IIRC.
If there is an incident the driver can press a button in the cab to make sure the last 3 minutes is saved and it will continue recording sound as well as vision. Very helpful if there's an RTC and the errant driver get on the bus and starts having a go at the bus driver! I've found that very useful when it's happened to me a couple of times. I simply sit in the cab, press the red button, and when Mr Angry spouts off I simply inform him that everything he says is on camera and is being recorded. It can also work against the bus driver though as it has in this case.
Tell your mate not to waste money on a solictor.
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Wait for roythebus and 3 come along together...most if not all bus/coach/lorry operators have it in their contact of employment prohibiting the use of hand-help phones, and some ban the use entirely in the cab. It is seen as gross misconduct and the employer is obliged to report such offences to the TC for his perusal regardless of whether the police are involved. The companies I work for prohibit the use of mobile devices in the cab, the driver has to shut down and lave the vehicle to use the phone, that way there is no doubt about things.Some prohibit the use of headphones as well.
that'll do it then
I would guess the employer concerned here has such a clause.
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Wait for roythebus and 3 come along together...most if not all bus/coach/lorry operators have it in their contact of employment prohibiting the use of hand-help phones, and some ban the use entirely in the cab. It is seen as gross misconduct and the employer is obliged to report such offences to the TC for his perusal regardless of whether the police are involved. The companies I work for prohibit the use of mobile devices in the cab, the driver has to shut down and lave the vehicle to use the phone, that way there is no doubt about things.Some prohibit the use of headphones as well.
The TC usually suspends the vocational licence for up to 4 weeks. The operator's action is usually calling it gross misconduct, instant dismissal. There is an appeal against the TC's actions, but it will be very expensive and with video evidence from the CCTV in the bus will be difficult to challenge.
I posted the exact wording of the Act on here few weeks ago and our learned friend NJ and I both learnt from that post. Touché.
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...does that not also require holding or touching it if not in a cradle?
I believe not. I seem to recall we’ve had this debate on here before. Imagine this:
You have a hand held phone. Before you begin driving, you make a call and begin speaking. You then switch the phone on to loudspeaker, stick it on your lap (or the passenger seat), start the car and set off. You carry on your conversation with no need to touch the phone. Are you using it?
But I’m not too sure it matters because it seems that the TC is not bound by the tiresome requirements necessary to secure a criminal conviction. Professional drivers of large vehicles are held to higher standards than the rest and the Commissioner may well find that, regardless of the legal niceties, listening to music from a mobile phone via headphones whilst driving a coach falls below those standards and warrants sanction.
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The powers of the TC are vastly under appreciated. As a driver I had no idea personally. As Foxy says, they will pay heeled to behaviors on the road, with conviction or not. The driver I spoke to who handled his phone in the cab and got the 5 day suspension did not get a criminal conviction.
The TC can also take action on convictions too. One driver I know was on frount of the TC for a conviction for a non driving related crime. He got a verbal warning.
Back to the OP's post, I suspect conviction or not, holding or changing music on the lap the TC will suspend the licence for anywhere from 5 days to 4 weeks, hopefully with no other conditions.
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If we can assume that the TC is solely concerned with alleged criminal offences...
The TC do not only look at criminal offences. They take into consideration any conduct that is likely to adversely effect road safety.
The TC's have a lot more power than people realise.
One of their powers is to revoke operator licences for conduct which goes against the requirements of the licence. A very real threat and directed recently towards farmers intending to head towards Westminster with their tractors.
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If we can assume that the TC is solely concerned with alleged criminal offences...
Holding (variously as opposed to touching or otherwise not holding) is a key ingredient of the offence - albeit that evidence that it must have been held at some point during the use, rather than necessarily evidence that he was actually holding it when he was "caught" would be required.
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he TC themselves do not hand out convictions, nor can they do anything to your private licences, however they do have the ability to take action against your professional licences, convention or not. If there's cctv showing the driving driving and changing music on his phone, even without a conviction the TC can take appropriate action against a licence holder.
I suspect regardless of convictions the TC would take punitive action here against the driver
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"if he looked at the phone but didn't touch it, that would be no different imo to looking at any other instrument."
But the offence is using the phone, not touching it. And there is a specific offence prohibiting the use of a hand-held phone whilst there isn't one prohibiting the use of (say) a speedometer.
does that not also require holding or touching it if not in a cradle?
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"if he looked at the phone but didn't touch it, that would be no different imo to looking at any other instrument."
But the offence is using the phone, not touching it. And there is a specific offence prohibiting the use of a hand-held phone whilst there isn't one prohibiting the use of (say) a speedometer.
I don't know very much about the work of the Traffic Commissioner and I assumed that any action taken by him would be following a conviction. But it seems not. From the same document this under the "Standard of Proof":
"In the vast majority of driver conduct cases, a traffic commissioner will be able to proceed on the basis of the facts following a conviction, fixed penalty, an endorsement or an admission of guilt. However, where no such findings have been made, the standard of proof required (in such civil proceedings) is the balance of probabilities, but the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."
And this under "Double Jeopardy":
"The concept of double jeopardy is sometimes raised in relation to traffic commissioner led regulatory action taking place in parallel with criminal proceedings. However, the principle of double jeopardy does not apply. Case law clearly indicates that regulation would be turned on its head if disciplinary proceedings could only be taken in the less serious of cases, where there are no concurrent criminal proceedings. However, if a traffic commissioner decides to proceed in advance of the criminal proceedings elaborate steps may have to be taken to protect the fairness of those proceedings. Ultimately the decision whether or not to continue is one for the traffic commissioner hearing the matter."
Perhaps Roy can help is out.
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Has your son really only had 7 days notice? Solicitors/representation are not cheap, and with only 7 days to go a bit short notice. Your son can represent himself and you can attend as a member of the public. Your son would need to be very humble/contrite and go into the meeting with expectations of having his PCV entitlement suspended. (If he goes in guns blazing, thinking he can talk his way out of it then it probably wont end well). Has he discussed with his new employer what the outcome will mean for his ongoing employment? Possibly get a letter from them if it supports him being careful driver/reformed character. Also if they will continue to employ him.
Cost of solicitor for a Public Inquiry that I worked on last year was £5k for the first solicitor who then due conflict of interest had to stop representing and £6k for the solicitor who represented the operator at PI. So £11k total.
You could write back and request an adjournment if you feel 7 days notice is not enough. From your description would probably be putting off the inevitable.
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So the TC is an interesting one. Not been in front of them myself (I drove PCV and work elsewhere in the industry now) But have had to study them and learn for CPC related reasons. One thing I would say off the beat, is TC driver hearings are generally open to the public, so if you want to go with your Son to watch what goes on, you can do (unless it states it's closed doors on the day) and there's the possibly that he may not be speaking to the actual TC, but a deputy on the day. Deputy's have the same power as the TC itself mind, so that point's rather moot.
My understanding is there are solicitors that deal with the TC as well, but unless you're looking at a revocation of the license or a winnable argument, I wouldn't bother personally.
The TC generally tends to take four courses of action depending on what's going on. No action, A verbal warning, A suspension or a revocation of the license. Generally we could rule out revocation and no action as they are the extreme end of the scale for both ends if you will.
The fact your son was driving and I assume, moving at the time will make this most likely lean towards as Newjudge said, towards the 4 week period. Length of service may come into account too with the TC potentially being more harsh based on less experience. One driver I spoke to who had been in front of the TC for mobile phone use (Looking at a bus stop, doors open handbrake on) was given a ban of 5 days instead of 4 weeks due to 27 years of service with no issues, this particular issue also being a report from the company (Most companies are obliged to inform the TC of these actions as part of operator license related duties)
On a note as well, with how the TC is (to my admittedly only researched and spoken to drivers viewpoint) the fact the phone was in the lap shouldn't reduce the violation. Coach/Bus/Lorry drivers shouldn't have the phone on anything but a cradle in a cab period.
This may be useful for a read to give you a heads up on how things work along with some other info
https://www.gov.uk/government/publications/a-guide-to-driver-conduct-hearings/a-guide-to-driver-conduct-hearings
IF you want to see what kind of examples of punishments that have been meted out, this is on the government website as well, however it does not include why they were at the TC, just the punishment.
https://www.gov.uk/government/publications/regulatory-decisions-made-about-the-conduct-of-professional-drivers
Not really sure of anything else truth be told, I made an account just to respond to this post :)
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yes, I was going to suggest Roy might have views on this.
I'm just trying to see if there is even a case to answer for the OPs son.
if he looked at the phone but didn't touch it, that would be no different imo to looking at any other instrument.
this may also bring into question his dismissal.
(subject to any specific conditions in his contract)
NOT that I'm condoning a bus driver having his phone on his lap >:(
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We have a regular poster - Roythebus - who I believe knows a bit about the Traffic Commissioners.
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They have cameras fitted inside the vehicle and if the driver closes their eyes for too long it sets the camera off, they also have cameras if the driver brakes too harshly / suddenly. I wouldn't be able to confirm if he touched the phone or not but I can confirm that later.
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how did they catch him? dash cam? someone reported him?
did he touch the phone AT ALL?
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On his lap I believe and connected by cable
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to clarify, when you say he "looked down at his phone" which was "connected to his earphones"....
where was the phone? in his hand? on the seat? in a cradle?
connected by cable, or Bluetooth?
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Thank you for the response and link. He did not receive a penalty or a fixed notice the police were not involved it was his company who caught him on camera and dismissed him from his job and reported it to the traffic commissioner at the time.
Would he need representation?
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Looking at this document (Senior Traffic Commissioner Statutory Document No. 6 - Vocational Driver Conduct):
https://assets.publishing.service.gov.uk/media/65956a19614fa2000df3a865/Stat_Doc_6_Driver_Conduct_-_Version_11.0.pdf
It looks like he can expect his vocational licence entitlement to be suspended for four weeks (see page 30 - 1st CU80 in a commercial
vehicle. CU80 is the endorsement code for use of mobile phone). This is assuming the transgression took place whilst he was driving a commercial
vehicle.
Did he actually receive a conviction or fixed penalty for the offence? I'm not sure whether this makes a difference.
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My son managed to get a PCV licence and had been working for a major coach company for a few months when he was sacked for looking down at his phone on which he was playing music whilst driving which were connected to his earphones (stupid thing to do he now knows) his employer reported him at the time to the traffic commissioner this was December 2023 and now a year later he has been sent a letter advising of a hearing before the traffic commissioner in 7 days time, he needs to respond by post to a) confirm he is attending and b) if he will have representation?
He is now working for a smaller coach company and is very careful whilst driving.
He could potentially lose his license and his livelihood 😭
What can he do to ensure his licence isn't taken away and he can remain in his job? Is there a way to do this? Is it worth getting a solicitor? If so will it be expensive?
Any help would be greatly appreciated as we are now quite desperate as there's a lot on the line 🙏