Last reviewed 28 August 2018
Most operators, transport managers and drivers have a good understanding of the main EU Drivers’ Hours Regulations. Despite this, there are a few persistent myths, misunderstandings and dangerous assumptions that arise time and again. In this feature article, Chris Powell (of Smith Bowyer Clarke Road Transport Lawyers) studies two of the most common myths.
Myth: driving a commercial vehicle on private land is always out of scope of the EU drivers’ hours rules
An operator runs a fleet of tipper and aggregate trucks contracted to a large local construction project. On a Monday (day 1), a tipper truck leaves the operating centre in the morning, drives to the construction site, and spends the rest of the day driving multiple journeys around the site as and when required. The driver and vehicle remain on site for the next three days, carrying out multiple journeys around the site. On day 5, the driver and vehicle return to the operating centre by public highway.
The EU Drivers’ Hours Regulations apply to “the carriage by road … of goods where the maximum permissible mass of the vehicle, including any trailer … exceeds 3.5 tonnes” [Article 2, para 1(a)].
The use of the phrase “carriage by road” can be confusing and has led some operators and drivers to wrongly assume that periods of driving on private land are always out of scope of the EU rules.
In fact, “carriage by road” is defined as “any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of … goods” [EC Regulation 561/2006, Article 4(a)].
This means that if there is any period of driving on a road open to the public between two daily rest periods, no matter how short, that whole working day falls within the scope of the EU rules.
Only working days comprised of periods of driving entirely off road are out of scope of the rules.
In the above scenario, days 1 and 5 fall within the scope of EU regulations for those whole days. This is because the vehicle travels on a road open to the public at some point during those days. The driver will have to record every period of driving, rest, other work and availability on those days.
Days 2 to 4 fall outside the scope of the regulations because all journeys take place entirely off the public road network. The entire duty and driving periods on these days would still need to be recorded as “other work” to enable the operator to ensure that the correct weekly rest periods are being taken.
In addition, the drivers would still need to comply with the Working Time Directive for mobile workers on all of these days.
A word of warning: It is possible for a “road open to the public” to be on private land. For example, a large construction site or housing development may be private land, but it may also contain roads to which the public have access. Any use of those roads would bring a goods vehicle over 3.5 tonnes in scope of the EU regulations for that entire day.
Myth: driving in a private car is always out of scope of EU Drivers’ Hours Regulations
An operator runs a fleet of trucks transporting fresh produce from the Midlands to the London markets. On a typical day, a truck will leave the operating centre, arrive at the London markets to unload, and return back to the Midlands, stopping en route at a service station to swap drivers. The “new” driver will drive for half an hour in his own car to the service station to take over the truck, leaving his car with the “old” driver to return to the operating centre an hour away to collect his own car and then 15 minutes home.
Drivers who “commute” in their own cars to and from their home to their employer’s operating centre where they are normally based can regard that period of driving as a break or rest period.
The position is different however, if that driver is driving to and from their home to a location which is not their normal place of work.
Article 9, para 2 of EC Regulation 561/2006 provides as follows: “Any time spent travelling to a location to take charge of a vehicle falling within the scope of this Regulation, or to return from that location, when the vehicle is neither at the driver’s home nor at the employer’s operational centre where the driver is normally based, shall not be counted as a rest or break …” This period of time is colloquially referred to in the industry as a positioning journey and must be recorded as “other work”.
The above scenarios have been adapted from real cases of operators who have appeared before the Traffic Commissioner at public inquiry following the discovery of drivers’ hours offences.