The GB Domestic Drivers’ Hours Rules apply to all drivers of goods vehicles, however small, driven in Great Britain (Northern Ireland has its own rules) in connection with a business, where EU drivers’ hours rules (tacho regulations) don’t apply.

The rules are quite straightforward. In any day (defined as 24 hours from the start of duty) you’re allowed to drive for a maximum of 10 hours. Driving is defined as being at the controls of a vehicle for the purposes of controlling its movement, whether it is moving or stationary with the engine running.

The total amount of time that you’re allowed to be ‘on duty’ for the same 24 hour period is 11 hours.

For an employed driver, including directors of limited companies, ‘on duty’ means any working time, including sweeping the yard, answering the phone, loading and unloading etc.

For a self-employed driver ‘on duty’ means driving the vehicle or carrying out any other work in connection with the vehicle or its load. Answering the phone or sweeping the yard would not be duty time, cleaning the van or loading it up would be.

If you drive for less than 4 hours in a day there are no restrictions on duty time – you could legally work in the warehouse for 10 hours and then drive for up to 4 hours.

There are exemptions to the duty time BUT NOT THE DRIVING TIME for certain trades, but same day courier work wouldn’t fall into any of the exemptions.

If you only ever drive vehicles that are under 3,500kg GVW there is no legal requirement to keep records of your working or driving hours.

• You can drive for up to 10 hours per day, breaks aren’t included in the 10 hours, nor is loading and unloading or waiting time with the engine switched off.
• You can ‘work’ for up to 11 hours per day, breaks aren’t included but all other work is included (unless you’re self-employed when some work doesn’t count).
• The ‘day’ lasts for 24 hours from the time you start work. So if you start at 10.00am today and work for 11 hours then you can’t do any more work until 10.00am tomorrow.
• There are no record keeping requirements for drivers of vans under 3,500kg.
• There is a requirement under the Working Time Directive and Health & Safety laws for drivers to have adequate rest.

The rules are enforced by VOSA, but except for in cases where tiredness has actually caused an accident I’ve never actually heard of anyone being prosecuted for being ‘over hours’ in a vehicle without a tacho or driving hours log. That’s not to say it doesn’t happen, just that I’ve never heard of it.

In the case of an employee who causes an accident while exceeding their daily driving or duty time their employer would almost certainly be held liable for the accident. A death caused by an employee under these circumstances could leave the employer facing a charge of Corporate Manslaughter.

It should also be noted that both VOSA and the Police can go to extraordinary lengths to establish exactly how long a driver has been working, particularly following a serious accident. Mobile phone records can easily be checked to pinpoint the users whereabouts to within a few hundred metres, your own GPS tracking logs can provide even more conclusive evidence, fuel receipts can be examined and the time of fuel-card and credit-card purchases can be traced. Even a POD for a 500 mile round trip same day delivery may be enough to incriminate you.

VOSA are already using ANPR (Automatic Number Plate Recognition), in conjunction with axle weight sensors embedded in the road, to identify overloaded vehicles. I believe that it’s only a matter of time before they use it to detect drivers’ hours offences as well.

In 2006 a 45-year-old Toyota employee died, apparently from working less than 20 hours overtime per week in the run up to launching a new product.

His death has now been classed as an industrial injury, meaning that his family can claim against his employers’ insurances.

60 hours per week is classed as a short week by many in the UK same day courier industry. While HGV drivers are limited by law to 48 hours work a week and any employed workers can insist on working a maximum of 48 hours per week with 5 weeks holiday per year, many courier owner-drivers and courier company owner-managers work in excess of 70 hours per week with few if any holidays.

For the working man, doing his best to provide for his family, is it not better to have a few more years to spend with the family, rather than a few extra quid each year and an early death? Life is apparently a journey, not a destination.

(Written by me, working at 1837 on a Saturday evening)

Does the RTD apply?

The RTD applies only to mobile workers who work in vehicles to which EU drivers’ hours rules apply – that is vehicles with a tachograph fitted. THIS WILL INCLUDE MOST DRIVERS OF TRANSIT OR SPRINTER VANS USED TO TOW TRAILERS.

‘Working in’ would include driving, shunting, navigating, training, loading etc and would include driver’s mates.

It applies to some self-employed drivers under limited circumstances but looks set to include all self-employed drivers (of vehicles with tachos) from March 2009.

Workers who only occasionally drive or work in vehicles to which EU drivers’ hours rules apply are still subject to the RTD even when not driving if they work in vehicles with tachos for 11 days or more during a reference period that is shorter than 26 weeks or 16 days or more where the reference period is 26 weeks or longer.

For example a warehouseman who takes a 7.5 tonner out to refuel it now and again would be covered by the RTD during all his working time if he drove the 7.5 on 11 separate days during the reference period, even if it was for just ten minutes each time.

A worker who is covered by the RTD because of work carried out for one employer would also be covered by the RTD if he carries out any other work for other employers – weekend work for example.

A mobile worker who isn’t covered by the RTD is still covered by the Working Time Directive (WTD)

What does the WTD mean to couriers?

The Working Time Directive does not apply to the self-employed. Unlike the RTD (see above) there are no firm plans to broaden its scope to include self-employed workers.

The rights that the WTD gives to mobile workers not covered by the RTD are:

An average 48 hour working week over (usually) a 17 week period. Workers can choose to opt out of the 48 hour maximum working week but the opt out must be voluntary and in writing and they can cancel their opt out at short notice.

Adequate rest, both daily and weekly – but unspecified. ‘Adequate rest’ means that workers have regular rest periods.  These should be sufficiently long and continuous to ensure that workers do not injure themselves, fellow workers or others and that they do not damage their health, either in the short term or in the longer term.

Free health assesments for night workers. This must be offered to all workers before they start regularly working at night time – which is defined as: at least three hours between 11pm and 6am or (by agreement with your workers) at least 3 hours during any 7 hour period which includes the period between Midnight and 5 am. Free health assessments must be offered on a regular basis, usually once a year or more.

A minimum of 4.8 weeks per year paid holiday per year (increases to 5.6 weeks on 1st April 2009). The employer is free (within reason) to specify the dates when the holidays can be taken and Bank Holidays are included in the minimum entitlement.

These are the minimum entitlements, employers are of course entitled to offer their employees better terms.

Further reading:

WTD Guidance

RTD Guidance

If he has been filling in a damage/defect sheet and he’s not mentioned the damage then it’s presumably gross misconduct anyway, so no notice needed.

This is one of the reasons why you’re meant to give them a written statement of their employment particulars within 2 months of them starting. It protects the company as well as the employee.
 

If they’re only driving vehicles that aren’t on tacho they’re covered by the Working Time Directive but not by the Road Transport Directive – so they’re allowed to opt out of the hours requirement of the WTD.

They’re also covered by the UK domestic driving rules which limits them to a maximum of 10 hours per day driving and 11 hours per day total ‘duty time’.

No written records need to be kept, but if your employee was to drive for say 11 hours a day and had an accident that killed someone (or him) you’d probably be charged with manslaughter.

“you can not employ a driver on a self employed basis if he/she only works for you as inland rev say there is no reason why can not be paye. “

Luckily it’s not the IR who decide, it’s the courts, and they think differently. There is case law relating to the transport industry which allows companies to ‘employ’ self-employed drivers to drive the company’s vehicles – as long as the contract’s properly worded.

There’s also no specific law against paying a driver a percentage or a mileage rate. I think the reason this is seen as a problem is that if you’re running vehicles over 3500kg and you receive attention from the Traffic Commissioners following an accident or drivers’ hours offences they they’re likely to rule that a bonus scheme, or mileage based payments is a contributing factor to the problem and penalise the company more than they would normally.
 

All that can be obtained is a Basic Disclosure, which is only ever issued to the applicant (the driver or whoever), these are available from www.disclosurescotland.co.uk. Ignore the fact that it’s a Scottish service – it covers the whole of the UK.
 

The GMB said it will fight for the reinstatement of Paul Whieldon, who said he was told on the phone by a boss at CitySprint that he had lost his job.

GMB official Terry Flanagan said: “The courier business is full of companies like CitySprint, who treat their employees in the most uncaring and unprofessional way.

“We have experienced low standards in the courier industry, but we do not expect workers to be sacked simply for asking for time off over Christmas.”

CitySprint said Mr Whieldon, who worked for the firm for five years, was “no longer engaged” as a sub-contractor, adding: “We decided to end our business relationship with Paul for amongst other matters, performance related issues.

“Selection and retention criteria for cycle couriers are very competitive for what is, in our experience, a highly sought after field.

“We currently have a long waiting list of applicants eager to work with us for this demanding role.”

Copyright (c) Press Association Ltd. 2007, All Rights Reserved.

http://www.hastingsobserver.co.uk/latest-london-news/Courier-39sacked39-over-Christmas-eve.3601367.jp

A lot would depend on what you were asking him to do (hours etc) and what his contract says. If he’s refusing to carry out his work then I’d have thought that you’re on pretty firm ground if you sack him. I’ve no idea whether you need to give him some sort of a warning first though.
 

IR35 just applies the same employment tests to service companies as it does to the self-employed and the same get-outs apply. So if you provide your own vehicle and stand to make profits or lose money depending on how you run your business then you/your company avoids looking like an employee. The fact that you work for just one customer is never relevant. Since DHL O/Ds supply their own vehicle, are paid per parcel and are fined for non-deliveries then they pass the self-employed/IR35 tests.

On top of that, as Richard mentions, even if they do none of the above and act and are treated exactly like employees then they can pass the self-employed/IR35 test just by having it written into their contracts that they have the right, or even better the responsibility, to provide a substitute driver whenever they wish.

So unless DHL have the most cautious and/or incompetent lawyers in the world I’m left with the feeling that there’s something else behind this ‘service partner’ concept.

My suspicion is that DHL’s position on this is more about accountability than employment status. They’re too much of a big fish to be able to risk getting caught cutting the corners they need to in order to operate efficiently and profitably. Far better to force their ‘service partners’ to cut the corners for them and then point the finger at these ‘independent companies’ when problems occur. Just my opinion.

In a worst case scenario, assuming the employer waits until the end of this tax year to report the benefit to the Revenue, the employee’s tax allowance for 2008/09 could be reduced by £7,000 – costing the employee an extra £30/week in tax.

It’s up to the employer to prove to the Revenue that a van that’s taken home at night isn’t available for the employee’s private use.

So if it’s your own vehicle and no-one else EVER drives it for work or sits in it for work then you can smoke in it.

The thick b******s that drafted the legislation put in an exemption to allow you to smoke in your house if people come to repair it but don’t seem to have added the same exemption for vehicles. So in theory your van will be smoke-free if anyone else (RAC, Police, mechanic) has to ever use it as their workplace. That situation will probably be refined by an expensive House of Lords appeal at some time in the future.

In Scotland your van is smoke-free even if no-one else is allowed access to it.

The passenger thing’s a good point. The law actually says that a vehicle is smoke free if it is used -

“(a) by members of the public or a section of the public (whether or not for reward or hire); or

(b) in the course of paid or voluntary work by more than one person (even if those persons use the vehicle at different times, or only intermittently).”

I don’t think that (for example) taking your wife to the shops is use ‘by members of the public or a section of the public’. So it looks like you can carry passengers sometimes. There also doesn’t seem to be anything to stop the driver’s wife from smoking in the van – even if he doesn’t smoke.

I could be wrong of course but I’d be very surprised if ‘a section of the public’ could be held to include an owner-driver’s wife.

None of which has anything to do with the original question. No, if you swap vans now and again then they both become ‘smoke free’ and need stickers.

You can order as many as you want free of charge from http://www.smokefreeengland.co.uk/content/order-materials.html