Vikki Woodfine, Partner at DWF LLP, considers how to approach drivers’ hours infringements. Why is it important to monitor them? How should these situations be approached? To what extent can drivers be disciplined or is re-training preferable in the event of infringements?
When considering how to approach drivers’ hours infringements, the primary issue to address is what systems does the vehicle operator have in place to properly collect, analyse and report on recorded driving? For example, if operators are not regularly collecting and analysing data and producing clear infringement reports, it is very difficult to then look to criticise or indeed discipline a driver for potential infringements.
Please note that the focus of this article is on driving under EU rules (Council EC Regulation 561/2006) rather than driving under domestic rules. However, the principles are generally applicable to all types of driving.
With Britain’s exit from the EU looming, there have been some questions over drivers’ hours and what will happen in this area of law moving forward. While rules on drivers’ hours emanate from Europe through EC Regulation 561/2006/, the UK adopted these regulations within the Transport Act 1968 and consequently this law will remain, regardless of our status in Europe. Therefore, our eventual departure from the EU will have very little impact on the underlying UK laws which have implemented directives such as 561/2006.
It seems unlikely that the UK will seek to change the law in this regard given that it all goes to the common goal of road safety, compliance and fair competition. Equally, any haulier operating outside of the UK would still have to be operating in accordance with EU regulations to avoid criminal implications while driving in those countries and so there is no benefit for the UK to introduce confusion by moving the goalposts now.
Recording drivers’ hours
When driving a large goods vehicle under an operator’s licence, this driving (and other activity) must be recorded. Records are kept through a vehicle’s tachograph recording equipment.
All commercial vehicles over 3.5t, first registered on or after 1 May 2006, must be fitted with digital tachographs that record how long drivers have worked, over what distances, at what speed and with what breaks. Operators can, however, continue to use an analogue tachograph in any vehicle registered before that date.
As a result of the introduction of digital tachographs, it has become far easier for the police and the Driver and Vehicle Standards Agency (DVSA) to detect drivers’ hours infringements.
Indeed, a report adopted by the European Parliament Transport Committee on 31 May 2012 recommended that digital tachographs should have the added ability to monitor a driver’s record by using global navigation satellite systems. Such devices would also allow wireless transfer of data. This would enable traffic authorities to run remote checks and identify breaches without even stopping vehicles.
Those proposals were accepted and a new EU Regulation applying to EU members from March 2016 introduced the “smart tachograph” which was aimed to reduce the administrative burden on hauliers and to eliminate the most serious forms of tachograph offending.
This regulation means that vehicles that are registered for the first time after 2 March 2019 will need to be fitted with a smart tachograph.
Given that it is felt that smart tachographs will lead to better enforcement of driving and resting times (as they will make fraud more difficult, enhance road safety and reduce controls for businesses), there is every likelihood that this law will be implemented in Britain even when we do exit Europe. Operators may also perceive a benefit in their introduction whatever our EU status as the new system will help to reduce roadside checks for compliant companies and allow enforcement authorities to better target the offenders.
With initiatives such as this being imminent, it has never been more important for operators to ensure that they are getting drivers’ hours right and that drivers employed by them understand the importance of driving in accordance with the rules on permitted hours.
Under their operator licences, operators have made the following undertakings to the Traffic Commissioners (among others):
“The laws relating to the driving and operation of vehicles used under this licence are observed; and
The rules on drivers’ hours and tachographs are observed, proper records are kept and that these are made available on request.”
As well as their obligations under operator licensing, operators also have legal obligations under legislation (see the Transport Act 1968) to ensure that their drivers observe the law on drivers’ hours. Failure to do so leaves them exposed if infringements are discovered by an enforcement officer (ie the police and DVSA officers). This can lead to criminal prosecutions against the operator as well as the driver.
While some driver infringements will not automatically result in action against the operator, such action could be taken if the operator has failed to make correct arrangements, eg:
the operator designed a “run” for a driver in such a way that the only way to complete that job would have required excessive driving
where an operator is shown to have failed to deal with regular infringements by a driver.
To ensure that the laws on drivers’ hours are being observed, operators must have a system in place that regularly scrutinises the tachograph records being kept by the drivers. This is applicable to both analogue and digital recording equipment.
Operators will not be held responsible for drivers’ hours offences committed by their drivers if they can show that at the time of the infringement the driver’s work was being organised in full consideration of the rules and in particular that:
no payments were made that encouraged breaches
work was properly organised
the driver was properly instructed
regular checks were made.
Some operators choose to analyse the tachographs in-house and others send these records to an external tachograph analysis bureau. Whichever method of analysis is being followed, operators should look to produce infringement reports and deal with these reports accordingly (see below under Dealing with infringements). Also, it is a good idea to regularly do audits of the system used to ensure that tachographs are being properly scrutinised and any issues are appropriately followed up with the driver in question.
Drivers are obliged to ensure their compliance with the rules on driving as set out in the relevant legislation (most commonly Council EC Regulation 561/2006). Failure to do so could leave the driver vulnerable to prosecution under the Transport Act 1968. With fines of up to £2500 per offence for non-fraudulent breaches of drivers’ hours (also applicable to operators), drivers should be keen to ensure their compliance. Fraudulent breaches of drivers’ hours legislation previously could be dealt with in the Magistrates’ Court or the Crown Court, but fines in the Magistrates’ Court were limited to £5000 per offence. However, the recent introduction of s.85 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 means that these offences are now the subject of unlimited fines in the Magistrates’ as well as the Crown Court.
As well as criminal prosecutions, drivers can face Traffic Commissioners in a conduct hearing upon their conviction for drivers’ hours breaches. This can have a detrimental effect on their vocational driving licence for persistent breaches.
The enforcement of the standards and requirements set down in an operator’s licence and under road transport law, which includes the enforcement of drivers’ hours is the responsibility of the DVSA and the police.
The DVSA and the police have the power to stop vehicles and carry roadside checks on commercial vehicles and they have a number of powers afforded to them regarding action that they can take if any issues are identified.
The DVSA and the police have a number of available options at the roadside when they identify matters of non-compliance with drivers’ hours which include:
issuing prohibition notices
issuing fixed penalty notices/graduated fixed penalties
the immobilisation of the vehicle
conducting an interview under caution
the issuing of a summons/prosecution (not dealt with at the roadside)
notification to the Traffic Commissioner of issues identified.
Only the most serious offences will be dealt with in the Magistrates’ Court, as in recent years, there has been a push to deal with more minor infringements at the roadside.
There are rare occasions where a driver may breach the rules on drivers’ hours. As long as road safety is not jeopardised, a driver may depart from the EU rules to the extent of time that is necessary to allow him or her to reach a suitable stopping place.
In this situation, drivers must note all the reasons for breaching the EU rules on the back of their tachograph record sheets (if using an analogue tachograph) or on a printout or temporary sheet (if using a digital tachograph) once they reach the suitable stopping place.
However, this relaxation of the rules cannot be viewed as a “back up” by operators, thus allowing them to push drivers to get as much driving done per day as possible. Repeated and regular occurrences of drivers relying on this point might indicate to enforcement officers that employers are not scheduling work to enable compliance with the applicable rules.
While drivers have a legal obligation to comply with drivers’ hours, it is advisable for employers to remind them of this obligation under their contract of employment and within any driver handbook. This should ideally set out what infringements would potentially be viewed as gross misconduct. For example, it is highly probable that an operator would want to ensure the ability to terminate a driver’s contract where that driver is found to have deliberately falsified a tachograph record or used a device to put his or her tachograph “to sleep”. Usually, the motivation for falsifying tachograph records or using such a device is to hide excessive driving, which is obviously a major risk to the safety of other road users. By making the position clear to drivers in advance on what is viewed as gross misconduct, operators put themselves in a stronger position in the event of serious infringements being identified.
Dealing with infringements
Infringement reports are generally reviewed by the operator’s transport manager. This report will identify breaches of drivers’ hours (no matter how small) that have been found upon the analysis of the tachograph records.
Where a driver has infringements noted, transport managers should always discuss these with each driver in question, seeking any explanations for this or, if none is available, explaining the cause for concern with the driver. The driver and the transport manager (as a matter of best practice) should sign and date the report. This allows operators to have a written record evidencing a system in place for ensuring that the laws on driving are being observed (as required under the operator licence).
When an infringement report is reviewed by the transport manager for the operator, this should not be done in isolation. Looking at a single report may not highlight any issues or a few minor issues that do not cause any concern. However, if infringement reports are monitored collectively, operators may begin to establish a series of frequent mistakes made by a driver or a group of drivers.
Where a driver is found to be making the same mistake repeatedly, this may not be a result of him or her flouting the rules, but simply failing to properly understand the rules. In that situation, a fair and reasonable employer would not go straight to disciplinary proceedings, but rather look towards re-training.
With the ongoing obligation for training and learning that drivers have through the Driver Certificate of Professional Competence (DCPC), operators in this situation faced with a driver failing to grasp the rules on drivers’ hours may consider signing that driver up for some accredited training on the subject.
Clearly, where a driver is failing to grasp the point, despite regular refresher training and guidance from the transport manager, the operator may feel that there is little option but to discipline the driver. Also, where the infringements are found to be serious (eg grossly over the set limits) and no explanation for this is forthcoming, again, an operator may feel that disciplining the driver is essential.
Persistent failure to take any action upon the identification of breaches (that are more than very minimal), be it through training, warnings or termination of contracts, could lead to an enforcement officer or a Traffic Commissioner being left with the view that the operator is condoning illegal activity and potentially putting other road users’ safety at risk. This would have dire consequences for the future of that operator’s ability to operate vehicles.
Where operators have their tachographs analysed by an external bureau, transport managers should not simply rely on the infringement reports, but should also look at some of the tachograph records themselves. This is to ensure that matters that are not captured by a report looking at drivers’ hours are also being observed.
For example, ensuring that a driver is correctly using his or her mode switch and that a driver is recording his or her time at the beginning of a shift for conducting a daily walk around inspection of the vehicle would not be picked up on an infringement report. However, this is still important to check, as these matters are currently high on the agenda of enforcement officers, as drivers are frequently found to be failing to record their daily inspections on their tachograph as “other work”, and failing to properly use their mode switch throughout the day. Operators are expected to be aware of this issue and must be able to show the steps taken to ensure compliance, or face prosecution or a Public Inquiry before their Traffic Commissioner.
Last reviewed 24 May 2017