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24 Legal Driving issues Attempts to prolong a driver's day are falling foul of the law and causing huge problems for operators and drivers alike, says Vikki Woodfine, Road Transport specialist at DWF Solicitors There is a general misconception amongst drivers and operators that driving to a location to take control of a vehicle will always remain part of a driver's daily / weekly rest period. Drivers and operators are now getting caught out when they are being issued with prohibitions, fixed penalty notices and / or prosecutions for this disturbance of their daily / weekly rest. Article 9 (2) and (3) of Regulation (EC) No 561/2006 sets out the following requirements:- • Article 9(2): 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 a break, unless the driver is on a ferry or train and has access to a bunk or couchette; and • Article 9(3): any time spent by a driver driving a vehicle which falls outside the scope of this Regulation to or from a vehicle that falls within the scope of this Regulation, which is not at the driver’s home or at the employer’s operational centre where the driver is normally based, shall count as other work. Drivers and employers must appreciate that arrangements for a driver to drive to collect a vehicle at a port, or from a customer’s site etc, would result in the driver having to properly record this time as other work (as per Article 9.3) or as a period of availability (as per Article 9.2 – travelling as a passenger). Therefore, the crucial point here with respect to drivers' hours is that unless the driver is collecting a vehicle (under these Regulations) from his home, or his usual depot, any time spent travelling in a vehicle to or from the operator’s vehicle must be counted as the driver’s working time and recorded accordingly. On this basis, operators must ensure that the driver’s true start time is manually recorded on their analogue tachograph record, or inputted into a digital tachograph record. Work must be planned accordingly to allow drivers to get to the location of the vehicle (if this is away from the usual operational centre or their home) without this encroaching upon the driver’s required rest period. Similarly, such time at the end of a duty period must also be recorded – i.e. the journey home. Operators must be checking that this is done when analysing their tachograph records. Time spent travelling to or from a vehicle that is not at the driver's home or the driver's usual operating centre will almost certainly be recorded on any timesheet record kept by a driver (for pay purposes). Therefore, if the tachograph does not clearly reflect the driver's true day – this could arguably be viewed as a failure to keep proper records or even a falsification of records. VOSA have become increasingly alive to this issue, and action is being taken against drivers that are failing to properly record such journeys as other work / Period of Availability. As well as potentially being treated as a failure to keep proper records or falsification of records, if driving to / from a vehicle renders the driver’s rest period ineffective (by reducing it too much), penalties in relation to drivers’ hours can also follow. Situations have arisen where drivers have driven for one hour in their own vehicle to take charge of their employer’s vehicle at a port and that one hour of driving took place in the last hour of the driver’s full weekly rest period. Therefore, the driver can be said to have failed to take adequate weekly rest and can be prohibited for 45 hours as a result of this small movement to collect the vehicle (for a failure to take proper weekly rest). It is in situations like this that operators become acutely aware of the need to properly understand Article 9 of the Regulations. Contact Vikki Woodfine by telephone on 0161 603 5060 or by email at Vikki.Woodfine@dwf.co.uk February 2010 www.<strong>ukwa</strong>.org.uk
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Page 3 and 4: Association News 3 EDITORIAL Foun d
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