Last reviewed 2 June 2020
Drivers on furlough and their employers must take care to ensure that they continue to observe the requirements of both the Drivers’ Hours and Working Time Regulations. This will particularly be the case where a driver is furloughed by one employer but continues to work for another. In this article, Richard Smith looks at the different scenarios.
A driver is furloughed and does no other work
For the purpose of the Road Transport (Working Time) Regulations 2005, time on furlough does not form part of the calculation of the average maximum weekly working hours as it is neither working time nor excluded hours. However, if any training is undertaken during furlough, the period should be recorded as working time as usual. Employers must record sufficient information on furloughed workers to meet their obligations under the regulations.
If a driver takes statutory leave while on furlough, the time spent on statutory leave must be recorded as such in the amount of 48 hours for a normal working week and eight hours for each individual day. Additional leave over and above statutory leave does not have to be accounted for in weekly totals of working time.
A furloughed driver who is not working within the scope of the EU/AETR rules at all will not need to make a tachograph record until a return to work, when it will be good practice to note on a printout the reason for the lengthy rest period.
As time spent on furlough does not form part of the calculation of average working time, many mobile workers may be able legitimately to work the maximum of 60 hours for many more weeks than usual when they do return to work, depending on when that is within the reference period. This gives an increased possibility of tiredness and employers should take care to see that drivers do not drive when tired. As always, employers are responsible for the health and safety of their employees and others and should be especially careful to monitor drivers and manage fatigue by not requiring them to work at or around the maximum hours for more weeks than is usual. Traffic Commissioners will take action against the operator licence where these health and safety responsibilities are not being observed.
A driver is furloughed by one employer but still works for another
It is quite within the law for a driver to be furloughed by one employer but still work for another one. Both employers must keep the required records and the driver must provide each of them with a record of time worked for the other, including driving time, other work, periods of availability, breaks and rest so that they can fulfil their responsibilities in respect of the Working Time Regulations and the undertaking given in the application for an operator’s licence.
Work that is undertaken when furloughed that is within the scope of the EU or AETR regulations must be recorded on the tachograph or a printout in the usual manner.
Downloading tachograph records
Drivers who are still working must continue to download their tachograph card record every 28 days and the operator must download the vehicle’s data every 90 days as usual. If it is not possible for drivers and/or operators to do this due to Covid-19 restrictions (the downloading equipment may be inaccessible, for example), a record of the fact must be made and shown to a DVSA examiner if requested.
Drivers who are not driving, either because they are furloughed or they are still working but not driving, do not have to download their card at 28-day intervals but will need to do so on their return to work.