Tim Ridyard of Woodfines solicitors reviews various issues surrounding the rules for the installation and use of tachographs and drivers’ hours, also considering the way in which derogations (relaxations) are interpreted in the UK.
Roadside interventions by police and Driver and Vehicle Standards Agency (DVSA) — leading to the issue of fixed penalties or even prosecution — tend to arise through basic errors, lack of training and complacency rather than a deliberate attempt to ignore the regulations. These days, the overwhelming majority of cases are dealt with by the imposition of roadside fixed penalties; those drivers’ employers are then obliged to notify the Traffic Commissioner of the fixed penalties, whereupon follow-up action may take place usually in the form of a Public Inquiry for the consideration of disciplinary action against operators and driver conduct sanctions against drivers.
Large-scale prosecutions are few in number and tend to relate to large-scale falsification and drivers’ hours offences where large numbers of drivers, together with the operator, may be the subject of criminal proceedings.
While digital tachographs are now relatively well established and the EU Drivers’ Hours Rules — revised through EC Regulation 561/2006 and in force from April 2007 — have remained unchanged, there is still widespread non-compliance on the part of operators and drivers, many of whom continue not to comply with the drivers’ hours rules and/or fail to have proper tachograph management systems in place. Such systems need to capture and retain analogue and digital tachograph records, analyse them and then provide infringement data so that drivers can be retrained and/or disciplined. These shortcomings tend invariably to be basic failings arising out of lack of knowledge and training, even though the introduction of the Driver Certificate of Professional Competence (CPC) provides an obvious platform to provide refresher training. Operators and drivers, can also be guilty of complacency. It is less usual for businesses and drivers to be actively involved in deliberate non-compliance including the creation of false records.
Operators should also re-evaluate whether there are robust systems and procedures in place that truly ensure avoidance of fixed penalties and potential court action, threatening the operator’s licence without which they cannot operate.
The necessity of having proper drivers’ hours systems is of course a fundamental requirement of the operator’s licence. Sadly, many operators have woefully inadequate systems. Often, though not exclusively, these are restricted licence operators who are not required to have a formally qualified transport manager. While being subject to the same undertakings as a standard operator, they often fail to get to grips with tachographs and drivers’ hours. Often they may engage in very simple, often local, operations with low mileages.
Typically, drivers do not commit rest offences — because their shifts are not prolonged and they do not have nights out — but they fail to deploy the correct mode switch on analogue charts.
Apparently, their entire working day comprises nothing other than alternating drive/break/drive/break activities and, seemingly, they carry no pre-use vehicle checks as there is no evidence of such on their tachograph records when in fact they may well have carried them out. The reality is that such recording of daily shifts constitutes a fiction and it is now commonplace for DVSA examiners to issue fixed penalties or even prosecute such drivers.
A case study
A recent Public Inquiry involving a restricted licence holder was heard before a Traffic Commissioner. The holder’s licence was relatively new and the Public Inquiry arose following a driver roadside stop. Scrutiny of the employee driver’s digital driver card, cross-checked by the DVSA examiner against the data in the vehicle unit, revealed not only a drivers’ hours offence but also a number of instances of the driver actually removing his driver card. The DVSA interviewed the licence holder who could provide no explanation as to why the driver had done this. The driver was summoned to a Traffic Commissioner Driver Conduct Hearing and confessed that he had removed his driver card in order to carry out his work as quickly as possible, enabling him to finish his shift early, unbeknown to his employer.
The DVSA investigated the operator and found that there was no system of cross-checking vehicle unit data and driver card data. The operator had also not downloaded vehicle unit or driver card data into a computer for analysis, although data had been downloaded onto downloading tools. The operator had received no training save for attending a DVSA New Operator — Operator’s Licence Awareness Course (OLAC). As a result of these shortcomings and also a failure to manage analogue tachographs properly, the operator was summoned to a Public Inquiry leading to a curtailment (reduction) of the operator’s licence and the suspension of the driver’s vocational licence.
This is a clear and stark example of how mismanagement of driver’s hours/tachographs can and does lead to Traffic Commissioner intervention.
Historical driver’s hours offences
When fixed penalties were originally introduced they were restricted to offences committed “on the occasion” of the vehicle stop — in essence they were confined to offences relating to the day of the stop such as insufficient breaks, excess driving or driving having taken insufficient prior rest to be able to work that day. Going forward, DVSA’s intention is that their ability to issues fixed penalties be extended to historical offences, ie ones committed on the 28 days preceding the day of the vehicle stop. This will require a change in secondary legislation and this is scheduled to be in place from autumn 2016. The likely impact of this is that, while DVSA and police will still only be able to impose a maximum of three fixed penalties, more penalties will be issued. In turn, this will lead to more notifications to the Traffic Commissioner.
DVSA has revised its Guide to Drivers’ Hours Rules and Tachographs Rules: Goods Vehicles (GV262). It was last published in 2011. There is no plan for it to be published in hard copy. Operators, transport managers and drivers would be well advised to consult this Guide and use it to revisit and reassess their own knowledge. It is not a Code of Practice in the sense of being a formal part of the law in the way that others are — however, it sets out DVSA’s view and interpretation, with the caveat that the ultimate authority is the court. The problem here, however, is that with the ever dwindling number of court cases and the seemingly ever increasing use of actions against drivers, rather than operators, facilitated by fixed penalties, there is almost no case law being developed within the UK courts in this area.
In general terms the new guidance does not introduce any really major change or revelations. This is not surprising as there have been no profound changes in the rules for the installation and use of tachographs or in the drivers’ hours rules that affect operators and drivers in their daily activities. However, there is interesting narrative and commentary where DVSA seeks to give better clarification and assistance to operators and drivers in order that they may ensure proper compliance.
Various small amendments and additions to the previous version of the Guide have been necessitated by the most recent tachograph legislation EU Regulation 2014/165. That particular regulation has updated EC Regulation 3821/85 and introduces the following changes to future digital tachographs, among other things.
New features for the next generation of tachograph to make fraud more difficult.
An interface with global navigation satellite system (GNSS) to pinpoint start/end locations.
A facility to communicate tachograph data from a vehicle to enforcement officers at the roadside when the vehicle is moving, thus avoiding unnecessary stops for checking.
This regulation has already introduced some other small changes. For example, one change updated in the new Guide relates to the EU-wide exemption from tachograph use for vehicles carrying materials, equipment to machinery for the drivers’ use in the course of their work. EU Regulation 2014/165 introduced a change meaning the use of tachographs is not in such circumstances required within a radius of 100km of base (previously 50km) so long as driving the vehicle does not constitute the driver’s main activity, as before.
(On this theme there has been a general move to align all distance-related exemptions and derogations so they all permit a universal relaxation of 100km from base. This attempt at consistency has also extended to drivers’ training requirements under the Driver CPC — for example, under SI 2015/2024 the Vehicle Drivers (Certificates of Professional Competence) (Amendment) Regulations 2015, regulation 4(3) amends the exemption set out in regulation 3(3)(b) to extend the radius within which an empty vehicle can be driven from the driver’s base without the driver having to obtain a CPC from 50km to 100km.)
Clarification on exempt vehicle operations
Of interest in the new Guide is some new and helpful clarification for drivers (whose occupation is not professional driving) employed to drive vehicles which would normally be in scope of EU Drivers’ Hours Rules. The Guidance clarifies that certain vehicle operations — which never carry goods or passengers — are out of scope of the tachograph rules such as driving:
a hire vehicle for the purpose of delivery or collection
empty vehicles to or from annual tests or a place of repair
the vehicle for the purpose of moving it between depots
a new/demonstrator vehicle for the purpose of collection or delivery
vehicles to be scrapped.
This will be useful to operators and drivers who often query what the true requirements are for such journeys.
Exemptions and derogations — definitions
Some types of vehicles or vehicle usage do require the installation and use of tachographs. While it is common parlance to refer to them generically as “exemptions” there is a specific distinction between exemptions and derogations.
Exemptions apply to the use of vehicles in all EU countries and mean the activities are simply exempt everywhere — it is a blanket relaxation.
On the other hand, derogations permit individual Member States to relax particular rules if they choose to do so. The UK opted to relax the tachographs requirements for 14 areas of vehicles/vehicle usage permitted by EC Regulation 561/2006 and this was effected in the UK through the Community Drivers’ Hours and Recording Equipment Regulations 2007/1819.
The Guidance provides some amended or new commentary in relation to derogations. This is of particular interest in those sectors, such as utilities, television and broadcasting, etc where previously there was State ownership but deregulation and privatisation has since taken place. When the provisions of EC Regulation 561/2006 were being drafted, the legislators were mindful of the distinction between private enterprise and services for the public good.
One particular area of the Guidance in which new commentary is given is in the area of public utilities.
“It is DVSA’s view that vehicles used in connection with sewerage, flood protection, water, gas and electricity services must be involved in the maintenance of an existing service (rather than the construction of a new service) to claim the concession” (in other words, the derogation).
The Guidance also deals specifically with sewerage treatment and states:
For vehicles used in connection with sewerage maintenance services the term “maintenance” also applies to the removal of waste from a system but only where the waste is removed directly onto the vehicle and immediately taken away for treatment. This would also include transporting partially treated sewage from satellite sites to main sites.
The derogation doesn’t apply to the movement of sewage sludge which has been treated to make a product which is then used for another purpose such as, for example, fertiliser.
(see 1.1 Exemptions and derogations)
There is an argument that this interpretation may be much too restrictive having regard to the origins of the changes in effect from 2007.
When EC Regulation 561/2006 came into force it contained within it a derogation in Article 13.1(h):
vehicles used in connection with sewerage, flood protection, water, gas and electricity maintenance services, road maintenance and control, door-to-door household refuse collection and disposal, telegraph and telephone services, radio and television broadcasting, and the detection of radio or television transmitters or receivers;
The UK adopted this by splitting up clusters of the above list and the relevant part of this derogation appears in the Community Drivers’ Hours and Recording Equipment Regulations 2007 by exempting:
8. Any vehicle which is being used in connection with —
(a) sewerage, flood protection, water, gas or electricity maintenance services
The word “maintenance” or phrase “maintenance services” did not appear in the predecessor to 561/2006, ie EC Regulation 3820/85. Further, the word “maintenance” also seems to be a creation of the English version of the original EC Regulation 561/2006 text. It does not appear in almost every other translation into other EU Member State languages. Other language versions, such as the French and German, separate out water, gas and electricity as a cluster of services from sewerage or flood protection and do not appear to refer to the concept of “maintenance” as suggested by DVSA above.
• h) véhicules utilisés dans le cadre des activités liées à l'évacuation des eaux usées, à la protection contre les inondations, ou au service des eaux, du gaz et de l'électricité, …
• h) Fahrzeuge, die von den zuständigen Stellen für Kanalisation, Hochwasserschutz, Wasser-, Gas- und Elektrizitätsversorgung, … eingesetzt werden;
So why does the word “maintenance” appear in the English version? What does it mean? “Repair and upkeep” in the narrow sense or the maintenance (retaining, keeping) in the wider sense? Does the word “maintenance” govern all five “sectors” in this derogation given it does not read this way in other languages? Finally, the case law in this area identifies, as a general theme, that services being provided for the public good are exempt, so long as the transport is ancillary to the core nature of the undertaking.
The restrictive nature of the interpretation of this derogation is at the very least unnecessarily narrow. An alternative interpretation is that if vehicles are being used in these utility sectors for the public good, then they should be able to enjoy the derogation for all activities, except where these are clearly commercial such as in the sewerage sector where, post-processing, a product is created for onward sale such as for agricultural purposes.
However, the DVSA does not appear to accept that if the activity of a public utility is exempt from tachograph use then a private contractor engaged by the utility as subcontractor to carry out that work on their behalf is also exempt.
Refuse collection and disposal operations
The theme of distinguishing between commercial activity and activity for the public good is also considered in the new Guide with regard to refuse collection and disposal operations. It makes plain that the collection of domestic type waste from commercial premises will enjoy the derogation whereas waste generated from a manufacturing process will not.
Operations are “likely to be exempt” from tachograph use when involved in activities such as door-to-door collections or collections from communal waste points, green waste, black bin bags, garden waste, collection of sofas and household appliances, newspapers or glass.
With regard to road maintenance services the DVSA position is that vehicles used in connection with road maintenance services that are engaged on a journey directly relating to the maintenance services (eg removing rubble and other materials) or are being used directly on the maintenance activity (eg laying tarmac) will be exempt from the tachograph rules. However, journeys to a site for the purpose of positioning the vehicle in readiness for the maintenance work or for returning to base will not fall into this derogation and are therefore within scope. On the other hand, vehicles that are engaged in road maintenance work and “don’t have to travel far” (distance unspecified) to/from the work location may be regarded as exempt.
This approach appears to have its origins in a European case called A. Karuse AS, decided on 13 March 2014 that considered the question of when a vehicle was really engaged in road maintenance and to what extent it was travelling a longer than necessary distance to deliver road maintenance materials.
The question that might be posed when looking at the way some of the derogations are being interpreted begs the question as to the benefit in having them. It is less than ideal for a business to have to juggle drivers’ hours management where there are mixed activities in and out of scope of the EU rules.
There are a number of further derogations where businesses may either be seeking to enjoy a relaxation to which they are not entitled and are not deploying ones they could use and DVSA has published its approach to them in the recent Guide. By way of example, the view of DVSA is that the derogation for agricultural, horticultural, forestry, farming or fishery undertakings applies only to the part of business to which the above applies; the derogation cannot be used throughout the undertaking as a blanket relaxation covering every type of goods vehicle movement.
The derogation permitted for the carriage of animal waste or carcasses not intended for human consumption does not extend to animal-derived products or shop waste.
Where the relaxation for specialised vehicles transporting circus and funfair equipment is claimed, the vehicle itself does not have to be specialised if the trailer itself is specialised; further, a distinction is drawn between simply carrying equipment that is specialised — for example, a catering kiosk is not exempt whereas the vehicle and/or trailer itself being specialised is exempt.
There is a new passage in the Guide relating to on-call drivers.
Drivers who are on call during any period of legally required rest must at all times be able to dispose of the rest time as they choose. This means that an employer cannot impose any limitations on drivers during such periods, for example, requiring them to remain in or close to home or at another location. Drivers must be able to dispose of their free time as they choose (but this does not include undertaking any work where they are under the control of or are fulfilling an obligation to an employer). Being on call may only extend as far as a driver agreeing to answer a call during a rest period but only if the driver so chooses. On receiving a call to return to work drivers may only do so if they have completed the legally required amount of rest or if the work is deemed to be an emergency.
It appears that DVSA does not regard incidental and helpful telephone calls to driving staff, such as ones informing them they can start their shift later than scheduled, as fundamentally compromising the rest rules. It would of course be ridiculous if an employer could not telephone a driver about any work-related matter during any rest period for a few seconds without a rest offence being committed. However, the concern here is that daily and weekly rest periods truly fulfil the requirement that drivers are free to dispose of their time. Where they cannot do so businesses need to consider if they have created other modes of work such as a period of availability.
Road Transport (Working Time) Regulations and drivers’ hours rules
The guide provides assistance with an understanding of the Road Transport Working Time Rules that continue to cause some misunderstanding. The “working time” rules in the road transport sector govern not only drivers, whether self-employed or not, but mobile workers. These are defined in the Road Transport (Working Time) Regulations 2005 as “any work performing part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward call on its own account;”. Of course, the Road Transport Working Time Rules only apply to mobile workers or self-employed drivers engaged in journeys in respect of which tachographs must be used — not for out-of-scope operations. They are also not governed by the Road Transport Working Time Rules if they work on fewer than 11 days in reference periods shorter than 26 weeks or on any given 16 days in 26 week reference periods.
The requirement to observe compliance with the EU tachograph and drivers’ hours rules, while at the same time having regard to the Road Transport Working Time requirements, continues to be a source of frustration for operators and drivers.
First, there is the practical issue of observing the break rules for the two sets of requirements. Second, the Road Transport Working Time Rules do not lend themselves to businesses where driving under the EU Drivers’ Hours Rules may be irregular and sporadic.
In some businesses drivers may oscillate between driving vehicles the above or below 3.5t or be involved in driving activities which may or may not require the use of tachographs. It is undoubtedly the case that most operators and drivers would prefer one uniform set of regulations to observe for the sake of simplicity. Further, the reality is that DVSA is primarily focusing on observance of drivers’ hours rules. The police do not enforce road transport working time at all. There has to date been an absence of formal criminal court proceedings in relation to working time rules: the focus has always been on drivers’ hours rules and tachograph use.
The DVSA Guide can be found at the GOV.UK website.
Last reviewed 24 May 2016