Road Transport (Working Time) Guidance

1. Who is affected by the Road Transport (Working Time) Regulations?

1.1 Main Points

The Road Transport (Working Time) Regulations 2005 (SI 2005 No. 639 - "the Regulations") affect drivers and other "mobile workers" who are involved in operations subject to the European drivers' hours rules, or in some cases the AETR, including own-account drivers and agency drivers. Generally anyone in a vehicle that is required by European legislation to have a tachograph is affected.

If a worker is only occasionally undertaking activities covered by the European drivers' hours rules (see Section 1.3 - "occasional mobile workers"), they are covered by the Working Time Regulations 1998, as amended (SI 1998 No. 1833 - "the 1998 Regulations"), rather than these Regulations.

The Regulations do not affect self-employed drivers until March 2009; provided they fit the definition of self-employed (see Section 1.4 - "self-employed drivers").

1.2 Who is affected?

Mobile workers are covered by the Regulations if they are involved in operations subject to the European drivers' hours rules or in some cases the AETR. Generally, drivers, vehicle crew and travelling staff of goods vehicles where the maximum permissible weight exceeds 3.5 tonnes or passenger vehicles suitable for carrying more than 9 people including the driver. [1]

A worker is anyone who provides work or services under a contract, express or implied. A mobile worker is any worker forming part of the travelling staff (typically drivers and vehicle crew, but also trainees and apprentices) who is in the service of an undertaking which operates road transport services for passengers or the movement of goods. Mobile workers include drivers who work for hire and reward companies or companies with own account operations.

Typically, this means:

• drivers of vehicles with a tachograph in them (unless they have an exemption from the European drivers' hours rules), i.e. goods vehicles over 3.5 tonnes, coaches and inter-urban bus services;
• members of the vehicle crew;
• any others who form part of the travelling staff.

A number of road transport operations require attendants who must accompany the driver by law, or fulfil a function ancillary to driving (e.g. navigating or crew to accompany abnormal loads), or security staff for high value goods. Travelling staff may include a range of individuals such as porters in household removals; draymen in brewery delivery movements; conductors on inter-urban buses. These would all be covered by the Regulations.

The Regulations do not apply to:

• mobile workers who are not participating in road transport activities covered by the European drivers' hours rules or in some cases the AETR (e.g. employed taxi drivers, certain van drivers, chauffeurs);
• any drivers, crew, travelling staff who do not come within the definition of "mobile worker" in the Regulations (e.g. a teacher who drives a PSV on a school trip, that is subject to the European drivers' hours rules);
• passengers (e.g. construction workers being ferried to a building site would be passengers rather than travelling staff);
• any worker who only occasionally does work which is within the scope of European drivers' hours rules (see Section 1.3); 
• self-employed drivers who come within the definition of "self-employed driver" in the Regulations (see Section 1.4).

1.3 Occasional mobile workers

The Regulations are primarily for the benefit of the drivers and crew of vehicles participating in road transport activities under the European drivers' hours rules. Drivers and crew who only occasionally participate in such activities are exempt from the Regulations. However, the requirements of the European drivers' hours rules continue to apply, as do the requirements of the 1998 Regulations.

A mobile worker would qualify for this exemption if:

• they work 10 days or less within scope of the European drivers' hours rules in a reference period that is shorter than 26 weeks;
• they work 15 days or less within scope of the European drivers' hours rules in a reference period that is 26 weeks or longer. [2]

In terms of what constitutes a day for the purpose of this calculation, the Department's view is that, in this context, a "day" means a rolling 24 hour period (starting with the commencement of in-scope work). This applies regardless of the amount of work done within the course of the day. So for example, if two separate 5 hour shifts of in-scope work occurred within the rolling 24 hour period that would only count as doing work on one day. No other calculations would be required during this period, and the next 24 hour calculation would start at commencement of the next period of in-scope work. Where a period of driving overlaps two 24 hour periods the second calculation would start immediately at the end of day 1. However, this is only the Department's opinion, and ultimately, interpretation of the law remains a matter for the Courts.

Employers of occasional mobile workers may arrange individual reference periods (if a relevant agreement is in place), or use the company default reference periods  - remembering, of course, that if a worker happens to exceed the above limits then they will be considered a "mobile worker" for the purposes of the Regulations, and any calculation of working time will be retrospective (i.e. include all hours worked from the start of the reference period).

1.4 Self-employed drivers

Self-employed drivers (as defined under the Regulations) are excluded from all the requirements until March 2009. However, the definition of "self-employed driver" under the Regulations has been tightly drawn. Therefore, those who might be classed as self-employed for the purpose of the Employment Rights Act 1996 or the 1998 Regulations are not necessarily classed as self-employed under these Regulations. Nor is the test the same as applied by HM Revenue and Customs.

As a consequence, only a limited number of drivers are likely to be regarded as a "self-employed driver" for the purposes of the 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 No. 639)

Key considerations are that:

• a self-employed driver must have an operator's licence;
• the amount of control that the driver has over their work is a key point, as is their reliance on profits to provide them with an income;
• if the worker is restricted (either implicitly or explicitly) from working for another client/customer, then they would be covered by all the requirements of the Regulations;
• in addition, most agency workers would not count as a self-employed driver because they are normally paid at a fixed rate. Once they accept a job, an agency worker is not free to organise their working activities.

For the purpose of the Regulations, drivers who are partners in a firm or who have limited liability will be treated no differently to sole traders. Providing they have an operator's licence and meet the other requirements under the Regulations, then they can class themselves as a self-employed driver.

1.5 Working for employment businesses and/or via employment agencies

Mobile workers who obtain work via an employment business or an employment agency are subject to terms and conditions under their contract with the business or agency. Workers are normally paid directly by an employment business, as part of their contractual relationship. The employment business is responsible for monitoring their work and keeping appropriate working time records. However, some workers who obtain work via employment agencies (on a fixed or short term contract) are paid directly by and have a contract with the hirer. Under those circumstances, the hirer monitors working time and maintains adequate records. Where no written contract of employment exists, whoever directly pays the worker in respect of work undertaken will be regarded as the employer for the purposes of the Regulations.

Some workers register with, and work for, more than one employment business. The calculation of working time must include work performed for all employers who undertake road transport activities under the European drivers' hours rules, during the reference period, so the worker must inform all such employers in writing (or whoever is responsible for keeping records), of the hours worked for another employer (See Section 2.5 - "working for two or more employers or another organisation").

Time spent working for employers other than those who are transport undertakings is not counted as “working time” under the Regulations.  However, both workers and employers should be aware that such work will impact on the EU drivers’ hours rules.  It must be recorded and cannot take place during any period relied upon as a “break” or "rest" for the purposes of the EU drivers’ hours rules. 

Employers and workers also have statutory duties under Health and Safety laws and a common law duty of care to ensure safe systems of working – including measures to ensure workers are not over-tired when carrying out their duties.

Agencies and employment businesses are not generally allowed to keep original tachograph charts or electronic data. If tachograph records are used to monitor working time, then the agency/business should copy the chart before returning it to the client, otherwise they will have to ask the client for a copy of the chart (or for a summary of the information on the chart). See Section 6 "Record Keeping" for full details on record keeping requirements.

Frequently asked questions:

Q: If a driver is normally deemed to be self-employed (for example for Inland Revenue purposes), but fails to meet the criteria of "self-employed driver" under the Regulations, is he/she covered by provisions under any other working time legislation (e.g. the 1998 Regulations)?

A: A driver does not necessarily become an employee for the purposes of other employment legislation, because he/she fails to meet the definition of "self-employed driver" under the Regulations. The definition of "self-employed driver" under the Regulations does not set a precedent, in relation to other UK employment legislation.

[1] More information about Regulation (EC) No 561/2006 - who is covered, the exemptions and exceptions, can be found in DfT’s drivers’ hours guidebooks, under the road freight section of the DfT website at www.dft.gov.uk

[2] Whilst 26 weeks is the maximum reference period under the Regulations, the 1998 Regulations allow for 12 month reference periods to be used.

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