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Information extracted from DfT Guidance dated 14th of March 2005, please check with DfT for the latest version and use that for legal advice.
Mobile workers are covered by the Road Transport (Working Time) Regulations if they are involved in operations subject to the Community Drivers' Hours regulation 3820/85/EEC or in some cases the AETR. Generally, drivers, vehicle crew and travelling staff of goods vehicles where the maximum permissible weight exceeds 3.5 tonnes or passenger vehicles suitable for carrying more than 9 people including the driver.One
A worker is anyone who provides work or services under a contract, express or implied. A mobile worker is any worker forming part of the travelling staff (typically drivers and crew, but also trainees and apprentices) who is in the service of an undertaking which operates road transport services for passengers or the movement of goods. Mobile workers include drivers who work for hire and reward companies or companies with own account operations.
Typically, this means
The Regulations do not apply to:
These regulations are primarily for the benefit of commercial drivers and crew of vehicles participating in road transport activity under Community Drivers' Hours regulation. However, it is possible that non-mobile workers (for example warehouse workers, mechanics, drivers of light vans) will drive vehicles within scope on an occasional basis.
Any worker who only occasionally works within scope will be subject to the Working Time Regulations 1998 (as amended), rather than these Regulations. You are an occasional mobile worker if you:
As now, limits under the Community Drivers' Hours regulation will apply to occasional drivers.
Self-employed drivers (as defined under these regulations) are excluded from all the requirements until March 2009. However the definition of self-employed driver under the Road Transport (Working Time) Regulations has been tightly drawn and is not the same as the definitions under the Employment Rights Act 1996, or under the Working Time Regulations 1998. Nor is the test the same as applied by the Inland Revenue.
Only a limited number of drivers are likely to be classified as "self-employed". Drivers, who do not satisfy the criteria for being self-employed under these new Regulations, will (along with employees) be subject to them from 4 April 2005.
"Self-employed driver" means anyone whose main occupation is to transport passengers or goods by road for hire or reward within the meaning of Community legislation under cover of a Community licence or any other professional authorisation to carry out such transport, who is entitled to work for himself and who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom, individually or through a co-operation between self-employed drivers, to have commercial relations with several customers".
A self-employed driver must have an operator's licence.
For the purpose of these regulations, drivers who are partners in a firm or who have limited liability will be treated no differently to sole traders, providing they do not regularly employ other drivers. Providing they have an operator's licence and meet the other requirements under the regulations, then they are classed as a self-employed driver.
Mobile workers who work via an employment agency or an employment business are subject to normal terms and conditions of employment under their contract with the agency or business. Workers are normally paid by (and have a contractual relationship) with an employment business. The employment business is responsible for monitoring their work and keeping working time records. However some workers who are employed via an employment agency (on a fixed or short term contract) are paid and have a contract with the hirer. Under these circumstances, the hirer monitors working time records. Where no contract of employment exists, whoever directly pays the worker in respect of work undertaken will be regarded as the employer for the purpose of these regulations.
Some workers register with (and work for) more than one employment business. But the calculation of working time must include work performed for all employers during the reference period, so the worker must inform all employers in writing (or whoever is responsible for keeping records), of the hours worked for another employer.
Agencies and employment businesses are not generally allowed to keep original tachograph charts. If tachograph records are going to be used to monitor working time, then the agency / business should copy the chart before returning it to the client, otherwise they will have to ask the client for a copy of the chart (or for a summary of the information on the chart).
Frequently asked questions:
Q: If a driver is normally deemed to be self-employed (for example for Inland Revenue purposes), but fails to meet the criteria of "self-employed driver" under these regulations, is s/he covered by provisions under any other working time legislation (e.g. Working Time Regulations 1998 - as amended)?
A driver does not necessarily become an employee for the purposes of other employment legislation, because s/he fails to meet the definition of a self-employed driver under these regulations. The definition of "self-employed driver" under these regulations should not be seen as introducing a precedent, in relation to other UK employment legislation.
One More information about regulation 3820/85, who is covered, the exemptions and exceptions can be found in DfT's drivers' hours guidebooks (GV262 and PSV375), under the freight logistics/road transport sections of the DfT website at www.dft.gov.uk Back
Two Whilst 26 weeks is the maximum reference period under these regulations, the Working Time Regulations 1998 (as amended) allow for 12 month reference periods to be used. Back