Road Transport (Working Time) Guidance

2. What counts as working time?

2.1 Main Points

Working time is not necessarily all attendance or shift time. It does not include travelling between home and work (however, it should be noted, that in certain circumstances such periods may count as "other work" under the separate European drivers' hours rules), lunch breaks, other breaks, periods of availability, optional evening classes or day-release courses.

Working time includes job-related training associated with normal work and training that is part of the company's commercial transport operation.

Work carried out for another employer (who undertakes road transport activities within scope of the European drivers' hours rules) counts towards the total working time performed by the mobile worker.

Voluntary work and activities performed by mobile workers who are part-time retained fire fighters, special constables and members of the reserve forces should not be counted towards these limits.

Employers Check

Identify activities that count as working time and those which count as periods of availability;

Ask workers to confirm any working time they have performed for another employer (who undertakes road transport activities within scope of the European drivers' hours rules).

2.2 What is working time?

The Regulations define working time as the time from the beginning of work, during which the mobile worker is at the workstation (typically this means the driver's cab - but see glossary for fuller definition of this and other terms) at the disposal of the employer and exercising his functions or activities - that is to say:

a) the time devoted to all road transport activities including:

• driving;
• loading/unloading;
• training that is part of normal work and is part of the commercial operation;
• assisting passengers boarding/disembarking from vehicle;
• cleaning, maintenance of vehicle;
• work intended to ensure safety of vehicle and its cargo and passengers (e.g. monitoring loading and unloading - including daily defect check and report);
• administrative formalities or work linked to legal or regulatory obligations directly linked to the specific transport operations under way.

b) time devoted to other activities:

• time during which the mobile worker cannot freely dispose of his/her time and is required to be at the workstation (typically this means the driver's cab - but see glossary for fuller definition of this and other terms) ready to take up normal work, with certain tasks associated with being on duty (e.g. working in the warehouse, or in an office or doing other activities for the employer);
• waiting periods where the foreseeable duration is not known in advance by the mobile worker, either before departure or just before the start of the period in question.

Working Time does not include:

• Routine travel between home and their normal place of work;
• Rest and breaks when no work is done;
• Periods of availability (see below);
• Optional evening classes or day-release courses;
• Voluntary work or time spent as a retained fire fighter, a special constable, or member of the reserve forces.

2.3 What is a period of availability?

Generally speaking a period of availability (PoA) is waiting time, the duration of which is known about in advance by the mobile worker. Under the Regulations, these periods have to meet the following criteria:

• a mobile worker should not be required to remain at their workstation;
• (but) they must be available to answer calls to start work or resume driving on request;
• the period and the foreseeable duration should be known in advance by the mobile worker, either before departure or just before the start of the period in question.

Like breaks and rest periods, a PoA can be taken at the workstation. Providing the mobile worker has a reasonable amount of freedom (e.g. they can relax and read), for a known duration, this would satisfy the requirements for a PoA. Where the mobile worker knows about a delay in advance, but it is deemed prudent that they should remain in the cab for reasons of security or safety, this should not in itself, disqualify this delay being recorded as a PoA. Typical examples might include waiting at a site that is unsafe for pedestrians or staying in a vehicle carrying high value goods or cash.

Mobile workers do not need to be formally notified about a PoA and its duration in advance. It is enough that they know about it (and the foreseeable duration), in advance either before departure or just before the actual start of the period in question.  A PoA would be deemed to be known in advance by a mobile worker if, for example:

• someone (who does not have to be their employer) has told them, or
• they have arrived too early for their allocated slot, or
• they always experience a delay at one of their regular customers.

A PoA does not apply to delays where the mobile worker has to continue working. For example, where a driver is diverted due to a road closure, he/she would still be driving. Normally, delays due to congestion would also count as working time because the driver would be stopping and starting the vehicle. If a mobile worker is monitoring a discharge from the vehicle (e.g. petrol at filling station), this time will also count as working time.

There are no requirements as to the minimum and maximum length of a PoA.

Examples of a PoA:  

Situations when a period of time could be recorded as a PoA (provided the "known in advance" pre-condition is met)

• Time when accompanying a vehicle being transported by boat or train.
• Time spent waiting at frontiers.
• Periods of waiting due to traffic prohibitions. Traffic prohibitions would include where the police have delayed the movement of an abnormal load for a set period of time, or where vehicles are banned from city centres during specified hours, and the driver has to park the vehicle and wait.
• When driving or travelling as part of a team, time spent sitting next to the driver while the vehicle is in motion, unless the mobile worker is taking a break or performing any other work (e.g. navigation). This time (or a part of it) could also be counted as a break - but would need to be recorded as such. Other travelling staff may also count travelling time as a PoA, provided they are not performing any other work.
• When a mobile worker experiences a delay at a regional distribution centre or depot, waiting for someone to load or unload their vehicle, if they know about the length of the delay at the start of the period (because someone has told them; because they have arrived too early for their slot; or because they always experience a delay at one of their regular customers).
• If a mobile worker typically experiences a 1 hour delay at one of their regular customers, then this would count as a PoA. However, if they were to unexpectedly experience a 2 hour delay, then the second hour would count as working time. Unless the mobile worker was notified, before the end of the first hour, that a further hours delay was expected, in which case the second hour would also count as a PoA.
• Where a mobile worker reports for work, is informed that they are not required to undertake any duties for a specified period (albeit, they need to remain on site to answer calls and be ready to take up work), but is free to wait in the canteen or rest facility.
• If the vehicle breaks down and the mobile worker is told how long it will take to be rescued.

Situations when a period of time should not be recorded as a PoA

• Where a driver is diverted due to a road closure, he/she would still be driving so the period could not be counted as a PoA.
• Delays due to congestion (i.e. stuck in a traffic jam) would not count as a PoA because the driver would be stopping and starting the vehicle.
• If a mobile worker is monitoring activity by others, (e.g. petrol at filling station, or the unloading of the lorry), this time would count as working time rather than a PoA.
• Frequently moving up within a queue (e.g. waiting within a queue to load or unload) every other minute would not qualify as a PoA.
• When the duration of the PoA is not known in advance, for example if a mobile worker was told to arrive at 9am and then leave at any time up to 1pm this would not be a PoA as the duration is not known.

2.4 Annual Leave

Mobile workers subject to the Regulations are entitled to 4.8 weeks' paid statutory annual leave under the 1998 Regulations (unless they do not meet the definition of "worker" under those Regulations).  The statutory entitlement will rise to 5.6 weeks on 1 April 2009, subject to a maximum of 28 days.

Four weeks of this statutory annual leave entitlement stems from the European Working Time Directive 2003/88/EC and is provided for by Regulation 13 of the 1998 Regulations.  This leave must be treated as 'neutral' (i.e. treated as working time) for the purpose of calculating weekly working hours.

The additional 0.8 week's statutory annual leave entitlement (1.6 weeks from 1 April 2009) is a domestic requirement provided for by regulation 13 A of the 1998 Regulations and does not have to be considered as 'neutral'.  This additional leave can be recorded as non-working time when calculating weekly working hours. This is similar to how contractual leave in excess of the statutory minimum can be treated.

It is open to any employer to provide their mobile workers with more favourable conditions than the 1998 Regulations require as a minimum, and to agree that all annual leave be counted as working time.

Employers are free to choose when to assign leave (subject to any relevant employment contracts and/or collective agreements that may be in place) as either statutory leave under regulation 13 or 13 A of the 1998 Regulations (or contractual leave when appropriate), as long as all of the 4 weeks leave provided under regulation 13 of the 1998 Regulations is allocated in a leave year (as this cannot be carried over).

2.5 What is a week?

The working week must start at 00.00 hours on Monday morning, and finish at 23.59 hours on Sunday.

2.6 Working for two or more employers or another organisation

For the purposes of the Regulations, working time is restricted to work for employers for whom a mobile worker carries out any in-scope road transport activities (i.e. work covered by the European drivers' hours rules). It includes both road transport activities and any other work for such employers (for instance when a driver also works in an employer's warehouse).

Work performed for employers who are not involved in road transport activities (for instance bar work) does not count towards the limits under the Regulations. However, such work would count as part of the "daily working period" for the purposes of determining compliance with the separate European drivers' hours rules (i.e. bar work will impact on when a worker can work and how much work they can do). In addition, all time spent working in such a second job does count towards the 48 hour limit under the 1998 Working Time Regulations, but an opt out from this 48 hour limit is available.

Similarly, the Regulations do not apply to workers who work for employers who undertake some road transport activities if the worker in question is not actually involved in such activities. In such cases, the worker would be subject to the requirements of the 1998 Working Time Regulations.

If a mobile worker works for two or more employers, then the weekly working time under the Regulations is the combined total of the hours worked (excluding breaks, rest and periods of availability) for all employers who undertake road transport activities. The mobile worker must tell their employer(s) in writing, of any working time worked for another employer who undertakes road transport activities.

Time spent on voluntary activities (e.g. driving a vehicle in a carnival/gala days) does not count towards the working time limits. In addition, time spent performing activities for the emergency services or Armed Forces (such as being a retained fire fighter, special constable, and duties performed whilst being a member of the reserve forces (Territorial Army etc)) should not count towards the limits under the Regulations.

Nevertheless, employers should bear these other activities in mind when deciding how much work (and what type), can be performed. Workers should not do any work that would compromise road safety or impair their health. In addition, all the rest requirements and limits under the European drivers' hours rules still apply.  It should also be noted that under the European drivers' hours rules other work for another employer, within or outside the transport sector, must be recorded for the purpose of checking compliance with that Regulation.  

Frequently asked questions:

Q: Can a worker be paid for periods of availability - even if these periods do not count towards the working time limits under the Regulations?

A: The basis for calculating the amount that a worker is paid by their employer should be determined by their terms and conditions of employment. The Regulations are simply concerned with the number of hours that workers can spend on certain activities which fall within the definition of 'working time' for the purposes of the Regulations. The Regulations do not say what a worker can or cannot be paid for.

Q: If a worker is given some work halfway through a PoA, does any of the time count as PoA?

A: Yes, the first part counts as PoA. For example, if a worker is told to wait for 1 hour but is subsequently told to start work after 30 minutes, the PoA should be recorded as 30 minutes.

Q: What if my employer asks me to record a PoA for longer than I have actually taken?

A: This is illegal and should be reported to VOSA using their confidential helpline 0870 6060 440 (See Section 7.3 - "Enforcement")

Q: While the vehicle is in motion, travelling crew can normally count time spent travelling as a PoA. Can part of this time also count as a break?

A: Yes, providing they are not doing other work; they comply with all the necessary requirements for a break; and record the time as a break.

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