COMMONS AMENDMENT (Hansard, 31 July 1962)

§ VISCOUNT HAILSHAM

My Lords, this is a "due diligence" clause, which was introduced in another place on Report stage following an undertaking given to the other House in Committee by the Government. It is again something of a compromise. Section 186 of the principal Act lays upon the holder of a carrier's licence an absolute duty to keep, or to cause to be kept, current records showing the hours of work of every person employed as a driver and particulars of every journey of a vehicle when goods are carried. As the law stands under the principal Act, if an employer is prosecuted, he continues to be guilty of an offence, however little he may have been to blame for the failure of his driver to keep proper 190 records. At first sight that seems very unjust. On the other hand, your Lord-ships will not forget the underlying background which causes the law to impose this duty upon employers.

In a highly competitive industry like that which we are discussing, there is a constant temptation upon employers to persuade, or over-persuade, their drivers to disregard the law for the time being about the hours of work, or even, in extreme cases, to direct their drivers to disregard the law regarding hours of work. It is therefore not at all unreasonable that the trade unions should attach a good deal of importance to the obligation of the employer to see that the records are properly kept, because, in the nature of things, it is much easier to base a prosecution upon a failure to keep records than upon a breach of the substantive law referring to hours of work. Indeed, one of the marks of an habitual disregard of the law relating to hours of work would normally be reflected in a failure to keep proper records. It is therefore reasonable that the obligation should rest upon the employer.

On the other hand, again in the nature of the case, it is quite clear that there are limits to what any employer can do to ensure that his drivers do keep proper records, or even that they drive proper hours. There are temptations, of carelessness or otherwise, which persuade them sometimes not to be up to the mark in that respect. The Amendment put the onus of proof clearly and squarely on the shoulders of the employers to establish "that he used all due diligence." This is a phrase which has been adopted in a number of other Acts, some of which will probably be known to your Lordships. The Food and Drugs Act, 1955, Section 113; the Mines and Quarries Act, 1954, Section 156, are the two that I have cited in my notes here. But I am fairly confident that this type of defence is available in quite a wide range of cases of this kind. In the circumstances, I think I can commend it to the House as a reasonable provision. My Lords, I beg to move that this House doth agree with the Commons in the said Amendment.

§ LORD SHEPHERD

My Lords, we accept this Amendment, but with some reluctance. We certainly do not wish to relieve the employer of the duty of seeing that his drivers carry out What is required, certainly in regard to hours of work, because we believe that it is generally accepted that the chances of accidents increase in relation to the hours which the drivers work. I feel that if they are pushed too far the chances of accidents are certainly increased. I find it hard to believe that the employer will have difficulty in keeping records of the hours worked by their drivers, because these drivers are paid by the hour. They are not salaried people, and obviously a transport company will be paying its drivers for the hours actually worked. Therefore, if the payroll shows that a driver has been exceeding the hours—which can be seen from the driver's claim for wages—I should have thought that was sufficient warning to the employer that the rules were being broken. However, we will accept this Amendment, with, as I say, some reluctance.