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Drivers and crew of vehicles that are ‘in scope’ under EC Regulation 3820/85 (or 561/2006) or the AETR benefit from the provisions concerning paid annual leave and the right to health assessments for night workers. Health assessments must be offered before a driver starts working nights and then on a regular basis. In addition, drivers must be requested to complete a questionnaire relevant to the type of night driving work to be carried out. If the answers in the questionnaire cast any doubts on a driver’s fitness to carry out such night work, he/she must be asked to attend a medical examination. The definition of self-employed drivers as it applies to the RTD is very narrow.13
How does the law affect me as a self-employed driver? To be a self-employed driver in the context of this directive, the driver must meet all the criteria under the new regulations. For example, he/she must not be tied to one employer, he/she must have an amount of control over his/her own work and he/she must rely on profits directly from the work undertaken to provide an income.
Other ‘mobile workers’ (i.e. employed drivers exempt from the EC Drivers’ Hours Regulations (3820/85/EC or 561/2006/EC) but subject to the UK domestic regulations) can also now benefit from some of the provisions contained in the 1998 Working Time Regulations.
How do the Working Time Regulations 1998 affect me? Mobile workers under domestic rules are subject to the ‘working time limits’ (maximum average 48 hours per week). Although they are excluded from the ‘night work limits’, mobile workers are entitled to ‘adequate rest’ (i.e. regular rest periods that are long and continuous enough that their (and anybody else’s) health is not damaged). There is an ‘opt-out’ for drivers in these regulations in relation to the average 48-hour weekly limit. The opt-out allows an employee to agree, in writing, to work longer hours. However, there is no such opt-out in the RTD.
Keeping records of employees’ working time under the RTD Records are normally kept by the employer. However, they will need to be kept by the agency if the driver has a contractual relationship with them (or is paid by them) rather than with the hirer.
This means that drivers working for one operator but who are not on the PAYE (pay as you earn) system would probably not qualify as selfemployed under this definition. This is because they are usually not free to work for others. Agency drivers are also unlikely to qualify as self-employed because they are usually paid by the hour and have no share of the profits from the work. However, sub-contracted operators (i.e. sole trader owner-drivers with their own Operator’s Licence) may be considered self-employed and may therefore be exempt from the RTD until 2009.
13
See Annex 6A of this Guide for a summary of the RTD and Annex 6B for the RTD’s definition of a self-employed driver.
SECTION 3: Drivers (employing, contracting and safety issues)
How do the Road Transport (Working Time) Regulations 2005 affect me?