Q Do any parts of the Working Time Regulations 1998 apply to mobile workers in the road transport sector?
A Mobile workers in the road transport sector only have limited rights under the Working Time Regulations 1998 (WTR). These are a right to four weeks’ paid annual leave and a right to health assessments for night workers. The Road Transport (Working Time) Regulations will provide for additional rights in relation to maximum weekly working time, night work and rest and break provisions. The new regulations are scheduled to come into force on 4 April 2005.
Q Do the Road Transport (Working Time) Regulations apply to self-employed drivers?
A The regulations will not apply to self-employed drivers until March 2009. However, the definition of ‘self-employed’ under the regulations is narrower than that used for the purposes of other legislation. The amount of control that a driver has over their work and their reliance on profits for an income are key. Where an individual’s ability to work for another client is restricted, they will be covered by the regulations.
Q If a driver is not self-employed for these purposes, will they automatically qualify for other rights under the WTR?
A No, the genuinely self-employed are excluded from the provisions of the WTR. A person who is not regarded as self-employed under the Road Transport (Working Time) Regulations 2005 will not automatically be considered an employee under any other legislation and may still be considered genuinely self-employed under the WTR.
This means that, while they may be entitled to the protection of the Road Transport (Working Time) Regulations 2005 in relation to, for example, hours of work, they will have no entitlement to four weeks’ paid annual leave or any other rights under the WTR.
Q Are staff who occasionally carry out work within the scope of the EU Drivers’ Hours Rules covered?
A There will be some workers who mainly carry out other work, but on occasion are required to carry out work that would come under the provisions of the EU Drivers’ Hours Rules. This might include warehouse staff and mechanics. The EU Drivers’ Hours Rules will continue to apply to these workers as appropriate, but they will not be covered by the new regulations. Instead, they will be covered by the WTR.
An occasional mobile worker is someone who works less than 11 days under the EU Drivers’ Hours Rules in a reference period of less than 26 weeks, or less than 16 days in a reference period of 26 weeks or longer.
Q Will a relief driver’s time spent travelling next to a driver count as working time?
A No. If a worker is not carrying out any other work as a member of the travelling crew this time will not come within the definition of working time as set out in the regulations. The time spent travelling with the driver will be a period of availability and will be excluded from any calculation of working time. As long as the worker is not carrying out any other work, this period could count towards their break entitlement under the regulations. However, if the worker is carrying out some other work, for example if they are navigating the route for the driver, then this will be considered working time.
Q Are drivers employed through agencies covered?
A The regulations will also apply to mobile workers in the road transport sector who are employed via employment agencies.
Where a worker is paid by and has a contractual relationship with an employment business, that business will be responsible for monitoring and keeping the relevant records as required by the regulations. Where the worker is employed via an employment agency, but is paid by and has a contractual relationship with the hirer, that responsibility will rest with the hirer.
If there is no contract of employment, the regulations provide that whoever pays the worker for the work carried out shall be deemed the employer for the purposes of the legislation.