The working time rules that apply to you depend on whether you drive a vehicle in scope of the EU or GB domestic drivers’ hours’ rules.
Driving under the EU/ AETR drivers’ hours rules
The Road Transport (Working Time) Regulations 2005 as amended (‘the 2005 Regulations’) apply to mobile workers who are regulated by EU/ AETR driver’s hour’s rules and those who operate transport services. There are different rules for occasional mobile workers (see text boxes below for definitions).
A mobile worker is defined as being any worker forming part of the travelling staff (including trainees and apprentice) who is in the service of an undertaking, which operates transport services for passengers or goods, by road for hire or reward or on its own account.
The 2005 Regulations define working time as the time from the beginning of work, during which the mobile worker is at the workstation (this includes in the vehicle) at the disposal of the employer and exercising his functions or activities – i.e. time devoted to all road transport activities including:
The main provisions of the 2005 Regulations are as follows:
The reference period for calculating the 48-hour week is normally 17 weeks, but it can be extended to 26 weeks if this is permitted under a collective or workforce agreement.
There is no ‘opt-out’ for individuals wishing to work longer than an average 48-hour week, but breaks and ‘periods of availability’ do not count as working time.
Generally speaking, a period of availability (POA) is waiting time, the duration of which must be known in advance. Examples of what might count as a POA are accompanying a vehicle on a ferry crossing or waiting while other workers load/unload the vehicle. For mobile workers driving in a team, a POA would also include time spent sitting next to the driver while the vehicle is in motion (unless the mobile worker is taking a break or performing other work i.e. navigation).
In addition, mobile workers are affected by two provisions under the Working Time Regulations 1998 (as amended – ‘the 1998 Regulations’). These are:
Drivers who only occasionally drive vehicles subject to the EU/ AETR drivers’ hours rules, may be able to take advantage of the exemption from the 2005 Regulations for occasional mobile workers (see text box below for the criteria).
Self-employed drivers were brought in scope of the EU/ AETR Working Time Directive 2002/15/EC in May 2012 by the Road Transport (Working Time) Amendment Regulations 2012.
The employer is responsible for keeping working time records, making the records available for inspection and informing workers of their responsibilities. Records must be kept regardless of whether or not the operation works close to the average 48-hour weekly working time limit and need to be kept for 2 years after the end of the reference period in question.
Mobile workers must see details of any relevant agreement in advance.
On request by an employer, mobile workers must inform that employer (in writing) of work performed for another employer.
Employment agencies/employment businesses must keep working time records if the mobile worker is paid by (or via) them.
Owner-drivers who do not meet the criteria for a self-employed driver should keep a record of their own working time.
DVSA enforces the provisions of the 2005 Regulations and the requirement for health checks for night workers (under the 1998 Regulations). For any questions about matters relating to annual leave, or other employment issues, call the Advisory, Conciliation and Arbitration Service (Acas) national helpline on 0300 123 1100 for free support and advice.
Definition of a self-employed driver under the 2005 Regulations
‘Self-employed driver’ means anyone whose main occupation is to transport passengers or goods by road for hire or reward within the meaning of Community legislation under cover of a Community licence or any other professional authorisation to carry out such transport, who is entitled to work for himself and who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom, individually or through a co-operation between self-employed drivers, to have commercial relations with several customers (Regulation 2 of SI 2005/639).
Definition of an occasional mobile worker under the 2005 Regulations
A mobile worker would be exempt from the 2005 Regulations if:
Driving under the GB domestic drivers’ hours rules or are an occasional mobile worker
Drivers of vehicles subject to the GB domestic drivers’ hours rules or who are an occasional mobile worker (see text box below), are affected by four provisions of the Working Time Regulations 1998.
These are:
The reference period for calculating the 48-hour average week is normally a rolling 17-week period. However, this reference period can be extended up to 52 weeks, if this is permitted under a collective or workforce agreement.
Adequate rest
Adequate rest is defined as being long and continuous enough to ensure that workers do not harm themselves, fellow workers or others and that they do not damage their health in the short or long term.
When considering the requirement for ‘adequate rest’ under the 1998 Regulations, employers need to take into account, not only the GB domestic drivers’ hours rules (which set maximum limits; which are only intended to give the industry some flexibility and should not be regarded as normal working patterns), but also the duty on employers, under health and safety at work legislation, to manage the risks of fatigue.
The Health and Safety Executive (HSE) has published guidance on this issue, as per the links below to further relevant guidance on their website:
Whilst mobile workers regulated by the 1998 Regulations can opt out of the 48-hour weekly average working limit, an employer cannot opt out of the requirement that workers get adequate rest. Therefore, employers are required to ensure that workers who have opted out of the 48-hour weekly average do not work excessively long hours and take regular breaks. Employers might also want to take into account; as best practice, the break and rest requirements in the sector specific working time legislation, which is applicable to drivers in scope of the EU drivers’ hours rules – see above.
Employers must take responsibility for determining what constitutes ‘adequate rest’ for each of their workers, which can differ dependent on a number of factors, such as: their age; health; personal circumstances; outside influences; type of work (mentally or physically strenuous) etc. to determine all the potential risks and impacts on that worker’s fatigue level. Compliance with the drivers’ hours and working time rules alone is insufficient to manage the risks of fatigue.
The 1998 Regulations do not apply to self-employed drivers (see text box below for definition). Please note that this definition is different to the one used under the 2005 Regulations.
DVSA enforces the working time limits and the requirement for health checks for night workers under the 1998 Regulations for drivers operating under the GB domestic drivers’ hours’ rules (and occasional mobile workers). Any questions about matters relating to rest or annual leave, call the Acas national helpline on 0300 123 1100.
Definition of self-employed under the 1998 Regulations
You are self-employed if you are running your own business and are free to work for different clients and customers.
Source – DVSA
