Keeping correct driver records — the new rules

August 2020 saw substantial changes coming into effect with regards the requirements placed on drivers to record their daily duties and activities from previous days and weeks. These revisions are the largest change to record-keeping since the introduction of digital tachographs and have substantially altered what drivers are expected to record, but many operators remain unaware of the increased obligations on drivers. Here Andrew Woolfall, from Backhouse Jones Solicitors, considers the new record-keeping rules and how to achieve compliance with them.

Changes to the rules and their interpretation

Prior to 2020, drivers were not required to record other work that fell outside the scope of the EU regulations, unless it occurred in the same duty period as a tachograph day. The obligation was simply to record this other work going back to the last daily or weekly rest period. However, the amended rules have removed the words “since the last daily or weekly rest period” and the DVSA is interpreting this as meaning that all out of scope activities have to be recorded, regardless of when or where they occurred.

In addition, the change to recording other work was not the only critical change at that time and, to coincide with the rules being amended, DVSA also changed its tachograph and drivers’ hours guidance to operators of goods vehicles (GV262) and buses and coaches (PSV375). This change stated that DVSA was interpreting the requirement to record rest as including not just daily or weekly rest but also periods of annual rest and sick leave.

In effect, the tachograph must now record, and employers must have records of, all the following:

  • driving

  • other work — whenever that occurs and whoever it is for

  • availability

  • breaks, rest, annual or sick leave.

DVSA position on rest and sick leave

As stated above, a critical change in August 2020 was DVSA’s interpretation of the rules concerning the requirement to record rest. Inserting a new section entitled “Common Rules” to the previously published guidance, it has now made it clear that the expectation for drivers is to record periods of annual or sick leave, in addition to traditional breaks and rest. This is recorded using the rest mode (bed symbol) with manual inputs on a digital/smart tachograph or by making a manual record on a chart or print out paper. A two-week holiday will now have to be recorded — as will a week’s sick leave and daily and weekly rest periods — rather than leaving blank entries on the days in question.

The DVSA advice is very clear that it is not acceptable to use attestation letters as an alternative for recording periods of annual or sick leave. While this may be acceptable in some European countries for drivers on international journeys, the UK will not accept these letters as an alternative to keeping and producing the formal tachograph records.

Given the DVSA position with regards letters of attestation, it is also clear that it will no longer accept diaries, time sheets, weekly time logs, wage records or notes on mobile devices as evidence of rest.

Recording other work

The same DVSA advice under “Common Rules” also makes it clear that there is now an expectation to record all other work that a driver undertakes, whether it is undertaken for the vehicle operator or in any other capacity. This includes any non-transport related work, for example, “a part-time driver who has a second job working in a bar, must record the bar work as other work, regardless of when that work takes place.” The guidance stresses that it is not permitted for a driver to undertake any work-related activity during legally required breaks or rest periods. Again, this must be recorded in one of the three prescribed ways, manual entry on digital tachograph, print out or analogue tachograph record sheet.

Driver and operator record-keeping

The requirement is for a driver at the roadside to be able to produce full records for the current day and the previous 28 days. As advised above, this means that records now need to be kept covering 24 hours a day, seven days a week in order to be fully compliant. There should be no gaps in any period.

A part-time or ad hoc driver will have to spend significant time making manual entries of all activity between driving duties, as will the new driver who starts work for the first time. A new driver card has the facility to record 28 days of manual entries.

Operators also need to ensure they train their drivers in this new obligation and that they have all necessary data with them. Their legal obligation is to keep and be able to produce 12 months of information, including all annual and sick leave. Operators need to make sure drivers are recording everything properly so that if DVSA requests the data, it can be easily produced. Ideally, tachograph and drivers’ hours analysis software should be configured to alert the user of any omissions. As stated above, diary entries or wages records will no longer be sufficient to fill in gaps.

Consequences of non-compliance

Early 2022 also saw a change in approach by the DVSA towards enforcement of the amended rules. Whereas drivers or operators were previously given warnings when a failure to keep proper historic records was identified, the new rule is to issue fixed penalty notices or to raise the matter in a referral to the traffic commissioner.

Prohibitions or roadside fixed penalties can be issued for failing to produce records or failing to keep proper records. At worst, a failure to record could be seen as the making of a false record, an offence which, for the most serious of scenarios, carries the risk of imprisonment.

In addition to fixed penalties or prosecutions, non-compliant drivers also run the risk of being called before the traffic commissioner for driver conduct hearings. In such circumstances, vocational driving licences can be suspended or revoked, and disqualifications can be issued. Similarly, failures by operators to have the systems and procedures in place to capture and retain this information could lead to public inquiries and transport managers coming under scrutiny.

How to avoid trouble

As with most systems used by operators and drivers, the first place to start when seeking to remedy any issue is through the provision of adequate training. Transport managers need to be familiar with the new rules and their interpretation and so do planners and drivers. Checks must be made to ensure analysis software is up to date and that the correct types of report are being examined so the software will alert those responsible to any gaps in a driver’s records.

Despite the changes coming into effect almost two years ago, it should be noted that many operators and drivers are still not compliant with the requirement and in a good number of cases are completely unaware of the increased necessity to report. It therefore needs to be recognised by operators that this is a substantial change to what existed previously.

For operators to become compliant there needs to be a period of analysis and focus, followed by further training where shortcomings are identified and to ensure the requirements are met. Where there are persistent failures by individual drivers to fully record their activities, disciplinary action has to be a consideration; the unfortunate alternative being that it is operators who will be targeted by the DVSA and other enforcement authorities when complete records cannot be introduced.

Possibilities for change

While the UK was obliged to introduce the August 2020 changes by the terms of its previous EU membership, in a post-Brexit world there is the possibility that a UK government could again alter the rules, especially for drivers and vehicles solely engaged in UK driving (ie not involved in European journeys). As the current Government calls for more suggestions to cut bureaucracy, red tape and unnecessary paperwork, there is the chance the UK could revert to the pre-August 2020 rules but only time will tell. For the foreseeable future at least, UK drivers and operators will have to comply with the new rules and the current DVSA interpretation of them, and need to be prepared to make changes where necessary to meet them.