When telematics first appeared in the commercial vehicle market, it was principally geographical tracking tools. Twenty years on and now operators can obtain data about everything from harsh braking to real-time fuel consumption, along with information about a driver’s remaining hours, drawn directly from the tachograph. Also now commonplace are 360º external cameras, while internal, driver-facing versions can pick up everything from microsleeps to mobile phone use.
All well and good, but gathering this information has its own legal implications, and not just in the form of GDPR compliance. Criminal and regulatory lawyer and barrister Charlotte Le Maire has clients across the UK. Part of the LMP Legal partnership, she specialises in representing both individuals and companies in the aftermath of serious or fatal road traffic incidents.
“Telematics in general can be helpful in terms of health and safety, along with defending insurance and compensation claims,” she says. “But from a legal point of view, and when I’m protecting my clients – who are often the operators as well as the drivers – this technology can be a foe as well as a friend.”
More often than not, she finds, operators do not have the ability or the capacity to be able to use the data being gathered in a way that both informs and protects them.
“They need to be able to find any trends in their drivers’ driving and do something about them,” Le Maire adds.
“The problem is, the more data you gather, the more information you have, the more you are potentially incriminating yourself.” So if you have a driver, or several drivers, regularly breaking speed limits, there is a trend of frequent harsh braking, or even just camera footage showing them go through a red light, that could cause a problem should the worst happen.
“Any prosecuting authority – the police, the traffic commissioner, HSE, whoever – can, and will, access that data, in the event of a more serious incident or collision,” Le Maire cautions. “If there is evidence that the driver concerned has been continually producing infringements of any kind, and that nothing has been done about it, then the onus is on the operator.” The potential damage can go further than that if cameras are involved, because footage can be shown in court. “When a jury can physically see a collision, it is emotive, and even when legally the driver shouldn’t be convicted, they often are,” we’re warned.
To be clear, Le Maire is not completely against operators having telematics on their vehicles. But if they do, it is vital that they understand the responsibility they are then taking on. Ignorance is no defence, so not having time to review data, or even not actually accessing it within a platform, doesn’t change the situation. What operators can do is outsource the data analysis, however. There are many companies out there who will periodically put all the information gathered into a simple report, which a transport manager or nominated person can then act on accordingly.
This is another area where operators need to be careful, however. “Document, document, document,” Le Maire says. “It’s not good enough to have a little chat with the driver when they come back with their keys on a Friday. You need to get something in writing,” she continues, “be that a formal verbal or written warning, or however your HR policy tells you to proceed.” But this, too, can be time and labour intensive, and all too easily allowed to slip when things are busy.
The bottom line is that if you have telematics, you need to be prepared to use it properly. “For me, as a barrister, I would genuinely rather you did not have it, than have it and not check the data,” advises Le Maire. “Ultimately it’s up to operators to take their own view, but I do think there needs to be more awareness of the pitfalls.”
IN THE REAL WORLD
One company that works with, and is advised by, Charlotte Le Maire is Halifax-based operator Freightlink Europe. Managing director Lesley O’Brien (main image) is only too familiar with how poorly-monitored systems come about. “Telematics people come in, and they sell you this wonderful system that is going to do all kinds of things,” she says. “But if you’re a small or medium company, you may not have someone dedicated to analysing data, so in all probability the system will only get used for tracking.”
This is where the nub of the problem lies – too many operators don’t realise they are leaving themselves exposed, simply by having an excessively complicated system. Even drawing up something as simple as a speed report can be a real minefield for the unwary. “The issue we’ve come across is that if, for example, your driver is on a motorway, and there’s another road that crosses it, you don’t necessarily get the right data,” O’Brien points out, “and it also doesn’t always pick up things like roadworks. So you then have to look each record up manually.”
Having talked to Le Maire while considering fitting internal cameras, O’Brien and her team were wary of the various offerings. She explains: “I needed a system which would analyse and feed me the relevant data, without having to access the information for myself. Because I knew neither I nor my team would have time to do that, nor could we afford to employ someone specifically to do this task, unlike some of the big 3PLs.”
While Freightlink Europe went ahead with the plan, it did so using a company which offers third party assessment, something O’Brien may not otherwise have been so concerned about.
“Now, if a driver picks up their mobile phone whilst driving, we get an immediate alert,” she tells us. “For everything else, I get a report at the end of the month.” Data is anonymised to a certain extent, to comply with GDPR. “The external company will not know who the driver is, only the vehicle details.”
O’Brien knows she and her staff can’t be complacent, however. “I’ll still then need to drill down further,” she concedes. “There have been cases, for example, where a driver was reported to have been smoking in the cab, which is illegal, but in reality they were just chewing gum. This just goes to prove that AI cannot totally be relied upon.”
The important thing is that, however Freightlink Europe chooses to administrate its telematics systems in future, it will be doing so with its eyes wide open to the risks. As for Le Maire, she knows the message she’s sharing won’t immediately be popular: she and O’Brien freely admit it didn’t go down well with the latter, to start with.
“I’m not saying that some telematics offerings aren’t good products, and that they can’t help with safety,” Le Maire says. “As a human being, why wouldn’t I want something that might help somebody see a bike, [for] example?
“But as a lawyer, I have to use a completely different mindset,” Le Maire concludes, “and there does need to be a lot more thought given to the potential consequences of using these systems.”