Last reviewed 30 March 2020

This article is designed to look at the legislation that is in place, the required record keeping and the operators’ responsibilities in the PSV world of rail replacement.

How often is it, that switching on the radio in the morning the announcement on the local travel “All trains from Hullabaloo Central to Chaostown are cancelled”, most of us are unaffected, but what happens to the number who rely upon the train for work, school or to visit relatives? Are they left to make their own way? Generally, an emergency rail replacement service will be provided.

However, there may also be planned rail works, where the network is going to be closed over a weekend, or in some cases a longer period, while repairs or upgrades to the line are being undertaken. In this case, the rail replacement is planned, it is a known activity and as a consequence, for an operator, the two have to be dealt with differently.

Gordon Humphreys takes a look at the two situations separately — emergency rail replacement services and non-emergency ones.

Emergency — rail replacement

In December 2018, the Department for Transport (DfT) issued its guidance relating to Emergency Exemption and Temporary Relaxation of Drivers’ Hours and Working Time Rules.

What is an emergency?

Under EC Regulation 561/2006, Article 3d states that these rules do not apply “to vehicles used in emergencies or rescue operations”, but there is no definition of an emergency. However, the DfT, in its guidance, would consider that it would include those situations defined within regulations for GB Domestic Regulations.

The definition of an emergency for passenger vehicles is set out in Regulation 2 of the Drivers’ Hours’ (Passenger Vehicles) (Exemptions) Regulations 1970 (SI 1970 No. 145).

One section of this definition, paragraph a(iv), is that “emergency” means an event which —

a) causes or is likely to cause such —

(iv) a serious interruption in private transport or in public transport (not being an interruption caused by a trade dispute) involving persons who carry passengers for hire or reward), or

A situation ceases to be an emergency once it no longer poses any of the above risks.

It is important throughout any exemption that operators still owe a duty of care to other road users and therefore, where possible would be expected to use drivers who had time to fulfil the work.

Only where it becomes impossible to comply with the regulations would a driver be permitted to breach them and at that point a record of the breach and the purpose of the journey would need to be recorded.

If a driver had been operating under EU Drivers’ Hours’ Regulations, then it would be expected that the driver still records all their activity throughout the day.

Rail replacement — non-emergency or planned

In many cases, the rail replacement service is not an emergency and is planned. This may be as a consequence of planned works, or a problem with the line, ie flooding where it is known that the railway will be out of action for a period of time.

In those circumstances, it is first necessary to clarify which regulation would apply and it may be beneficial to review the legislation.

EC Regulation 561/2006 states in Article 3(a) “This Regulation shall not apply to carriage by road by: vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres;

Therefore, if the “route” is 50kms or less then this is exempt from EU Drivers’ Hours’ Regulations and a driver would be expected to operate under GB Domestic Regulations.

Please note that the route does not include the positioning journey to the starting location of the route or the return journey after completing the route.

EC Regulation 1073/2009 which defines Regular Services repealed EC Regulations 684/92 and EC Regulation 12/98 and entered into force on 4 December 2011.

“Regular Services” are defined as meaning in Article 2(2) of EC Regulation 1073/2009, “services which provide for the carriage of passengers at specified intervals along specified routes, passengers being picked up and set down at predetermined stopping points;”

“Special Regular Services” are defined as meaning in Article 2(3) of EC Regulation 1073/2009, “regular services, by whomsoever organised, which provide for the carriage of specified categories of passengers to the exclusion of other passengers;”

Within the general provisions of the EC Regulation 1073/2009 further clarification is given with respect to what is covered by a Special Regular Service and this states:

Special regular services” means regular services, by whomsoever organised, which provide for the carriage of specified categories of passengers, to the exclusion of other passengers, at specified intervals along specified routes, passengers being taken up and set down at predetermined stopping points.

Special regular services shall include:

a) the carriage of workers between home and work;

b) carriage of school pupils and students to and from the educational institution.

The fact that a special service may be varied according to the needs of users shall not affect its classification as a regular service.

Special regular services do not require authorisation if they are covered by a contract between the organiser and the carrier.

The organisation of parallel or temporary services, serving the same public as existing regular services, requires authorisation.

Therefore, it is imperative that the operator determines from the provider of the route whether it is over 50km in order to determine whether the journeys are required to be made under EU or GB Domestic Regulations and therefore, whether there is a legal requirement for records to be held.

What records are required?

EU Drivers’ Hours’ Regulations — this is the easier section, if the route is over 50km then the driver has to record all the activity using a tachograph, including all manual entries that may be required to record the full extent of their working day.

However, if the driver is mixing EU and GB Domestic Regulations then the driver will be required to carry with them records of their other working days for the previous 28 calendar days should they be stopped at the roadside. This is in order that the rest periods, whether daily or weekly are shown to have been taken.

GB Domestic Regulations — on the face of it, a driver who works exclusively under GB Domestic Regulations has no requirement to keep a written record of their work.

However, for an operator and particularly one that operates a mixed operation, ie EU Drivers’ Hours’ Regulations and GB Domestic Regulations then it should be more complex.

At a recent Public Inquiry, the operator concerned was expected to be able to evidence which journeys of the tachograph’s unknown driver movements were undertaken for the purpose of GB Domestic Regulations, maintenance, MOT or tachograph calibrations. An operator is expected to have this information in order to comply with the undertakings on the operator licence and prove that they have obeyed with the drivers’ hours and record-keeping regulations.

Therefore, Traffic Commissioners are encouraging operators to ensure that they keep more than the records required to be produced at the roadside, and ensure that they keep records to evidence compliance.

Failure to be able to evidence this information may lead to detailed investigations to ensure that drivers are not abusing the regulations.

The recommendation for all drivers who mix work (EU Drivers’ Hours’ Regulations and GB Domestic Regulations) during their work is that they should record all of their activity on their driver’s digital card, with driving for GB Domestic Regulations recorded as Out of Scope driving in order that it can be distinguished and drivers should be aware of how to do this activity.

In summary, if the journey is for an emergency then the driver is exempt, but records, where necessary still need to be made and retained and any breach of the regulations must be recorded on a print-out, or reverse of an analogue chart, which must be retained in accordance with the law.

If in doubt as to whether the matter is an emergency, then it is recommended that the driver complies with the appropriate regulations and then, should it become impossible to comply then this should be due to an unforeseen event, which was unknown and unexpected when the journey began.

If the journey is planned, then the regulations to follow are determined by the distance of the route to be covered. If over 50kms then the work is operated under EU Drivers’ Hours’ Regulations, while if 50kms or under then the journey is covered by GB Domestic Regulations.

The recording requirements under GB Domestic Regulations are that no written records are required, but if the driver does or may also operate under EU Drivers’ Hours’ Regulations then it is advisable that records are retained to ensure that the driver can evidence daily or weekly rest periods at the roadside.

If the driver does operate under EU Drivers’ Hours’ Regulations on the same day as undertaking a rail replacement under GB Domestic Regulations, then it is a legal requirement to record all that working day.