There has been much debate and discussion over the past 12 months concerning various guidance notes being issued by the authorities, changes in enforcement practices and new proposals being set out by the European Commission. These have all led many operators to be uncertain as to the current law concerning drivers and weekly rest. In this article, Andrew Woolfall looks to explain the current legislation and changes that are planned for the coming years.
What is the current law?
The law as it stands today is the same as when the last major change to drivers’ hours rules came into effect in 2006. In summary, a driver has to take a “regular” weekly rest of 45 continuous hours in every week (0000 hours on a Monday to 2359 hours on a Sunday) and this must commence after no later than six 24-hour periods following the end of the last weekly rest. This 45 hours’ continuous rest can be reduced, every second week, to a minimum of 24 continuous hours (known as a reduced weekly rest). Rest means that the driver is freely able to dispose of his or her time as he or she wishes — he or she cannot be doing other work. In any two fixed weeks, a driver must take at least two full rests (of at least 45 hours each) or one regular 45-hour rest and one reduced weekly rest (of at least 24 hours).
Where a reduced weekly rest is taken, compensatory rest (the difference between the amount of reduced rest taken and a full 45 hours) must also be taken by the end of the third week following the week in question.
Must compensatory rest be attached to a weekly rest?
There has been, for many years, a misunderstanding that any compensatory rest must be attached to a full weekly rest. This is not correct. Both the Government website and Acas have recently issued guidance confirming that compensatory rest can be attached to a daily rest of at least nine hours. The compensatory rest must be taken in one block. The compensatory period cannot be split up in multiple instances. The compensatory rest must also be taken — whether attached to a daily rest or the next weekly rest — by the end of the third week following the week in which the reduced rest was taken.
There are, however, proposals from the EU that will see, if they become law, the issue of compensatory rest only being attached to a weekly rest. This is described in more detail below.
Has there been a change in the law which means that rest cannot be taken in the cab of a vehicle?
In short, no. What has changed is the approach undertaken by the enforcement authorities.
The EU drivers’ hours rules have always been clear that both a daily rest and a reduced weekly rest can be taken in the vehicle as long as it has suitable sleeping facilities, such as a bunk or other type of bed. The Driver and Vehicle Standards Agency (DVSA) is very clear that this does not include sleeping across the seats! The rules have, though, been silent on where a full weekly rest should be taken. Given the lack of any clear statement, many countries have adopted different approaches to the enforcement of this point. Some have always been very clear that a full weekly rest must be taken away from the vehicle and have imposed high fines if this did not take place. Others, including the UK, tolerated taking a full weekly rest in a vehicle’s cab.
However, a recent statement from the Advocate General of the European Court of Justice has confirmed that the UK approach (along with several other countries) was wrong and that a full 45-hour weekly rest could not be taken in the cab of a vehicle. This is why we are now seeing a change in stance from the DVSA and other domestic enforcement authorities.
What does all of the above mean in practice? I have a driver who regularly drives long distance European trips. He is regularly away for weeks at a time.
If your driver goes away for a long period of time, he or she can take a reduced weekly rest in week 1 but this must be compensated for by the end of week 4 (ie three weeks after the weekly rest that needs compensating). For example, if week 1’s rest is reduced to 33 hours rather than the normal 45 hours, compensatory rest must be taken by the end of week 4.
The compensation must be an additional 12 hours added to either another full weekly rest of 45 hours or a daily rest of at least nine hours. If it is added to a weekly rest, the driver will have 57 hours’ continuous rest. If the compensation is added to a daily rest of 11 hours, the total rest he or she will take that day is 23 hours. If it is added to a nine-hour daily rest, the driver will have to take 21 hours’ rest.
The driver can take his or her reduced weekly rest in the cab of the vehicle (as long as it is suitable) but the subsequent full weekly rests (along with any compensatory rest, if taken as part of a weekly rest) must be taken away from the vehicle.
The driver cannot take another reduced weekly rest until he or she has taken a full weekly rest.
What changes are we likely to see in the future?
In 2017, the European Commission published a discussion document setting out a series of proposed changes to various aspects of road transport legislation. These included changes to operators’ licensing and drivers’ hours rules.
With regards to weekly rests, the first proposal is that any weekly rest, regardless of whether it is a reduced or full period, must be taken away from the vehicle. The suggestion from the European Commission is that operators will have to provide alternative accommodation for drivers. The reasoning is that this will provide a better quality of rest for the driver and thus improve road safety. It may also lead to drivers being able to spend more time at home every month if they wish to do so. However, this is also potentially subject to an exception where a driver can take the weekly rest (whether it is a reduced or full weekly rest) in the cab of the vehicle so long as the vehicle is parked in a properly certified parking area that will have a minimum standard of facilities, such as toilets, catering, showers, etc.
The second proposal from Europe is that any compensatory rest must only be applied to a weekly rest. This will see the removal of the ability to add the compensation onto a daily rest.
The third proposal is that the number and format of reduced weekly rests will change. It is proposed that over a four-week period, a driver can take up to two reduced weekly rests in a row. Compensation for the reduced rests must then be added to the next regular weekly rest. While this will be subject to the requirement to provide accommodation, it will give many operators a greater degree of flexibility.
The new proposals are unlikely to come into effect before the end of March 2019, when the UK leaves the EU as part of Brexit. However, there is a very good chance that they will become law during the “transition period” and therefore the UK may well have to implement these changes into domestic law — or at the very least for vehicles which are engaged in international journeys. Operators should, therefore, make sure they keep up to date with transport industry news to see if their businesses will be affected by these changes.
Last reviewed 26 November 2018