Road transport: frequently asked questions part 2

This week Sue Nickson, International Head of Employment at Hammonds, ends her series of articles on the forthcoming Road Transport (Working Time) Regulations by answering further frequently asked questions on the subject.

Under the Road Transport (Working Time) Regulations which reference period should an employer use when calculating working time?

It is a matter for the employer to agree in advance which method will be used for calculating and monitoring working time under the Regulations. Where this is not possible, the standard default reference periods will apply.

Many employers will choose to use the 17-week rolling reference period as already used under the Working Time Regulations 1998. Some employers, however, may prefer to use a fixed reference period that can be agreed up to a maximum of 26 weeks. This can provide some added flexibility and may be easier to monitor and enforce.

Employers that wish to use individual agreements to determine reference periods in advance, where there are part-time workers for example, should bear in mind that the maximum length of a reference period permitted under these arrangements is 18 weeks.

It is possible to use different reference periods for different groups of workers as long as they are aware of the method that is being used. It is also possible to change the method used, although again this would need to be in agreement with the workers and care would need to be taken to ensure that the 48-hour average weekly maximum is not exceeded as a result.

Is it possible to use annual leave and sick leave periods when calculating average weekly working time for the purposes of the Regulations?

Neither statutory paid annual leave as provided under the Working Time Regulations 1998 nor periods of sick leave can be taken into account in working time calculations. However, it is possible to take account of annual leave over and above the statutory four-week entitlement. This means that where a worker is entitled to an additional period of contractual paid annual leave over and above the statutory minimum period, this additional leave can be used to reduce the average weekly working hours once the initial four weeks have been used up.

Are tachographs suitable for monitoring working time under the Regulations?

The Regulations require an employer to keep records to show that the weekly working time and night time work limits are being complied with and to monitor working time to ensure that the 48-hour average weekly limit is not exceeded. The Regulations do not specify exactly what form the records should take, but clearly they must be adequate for the purpose for which they are required.

The Department for Transport acknowledges that many employers in the sector will use information and data from tachograph records to monitor the working time of their employees. It advises employers to instruct drivers to use separate modes of recording different types of activity to ensure that the records provide an accurate reflection of working time as defined under the Regulations. At present, periods of availability are defined differently under the EU Tachograph Rules and do not require that the driver knows the duration of the period in advance. This definition will shortly be brought in line with Road Transport (Working Time) Directive. Having separate categories of time recording as suggested above should eliminate any confusion that could otherwise be caused by this point.

It is also important to remember that although the EU Drivers' Hours Rules require that tachograph records are kept for only one year, the Regulations require that records are kept for two years.

Are there any issues to be aware of if a driver is driving abroad?

The Road Transport (Working Time) Directive is a piece of European legislation and will be implemented throughout other member states. Each member state is responsible for transposing the Directive into national legislation. It is possible that a driver could be stopped in another member state that chooses to carry out random tests of compliance by reference to tachograph records. The requirement that working hours do not exceed an average of 48 hours per week means that it will be extremely difficult for a foreign agency to determine whether this limit has been complied with as there will be insufficient information available. However, it should be remembered that there is a prohibition on working more than 60 hours in any one week and limits on night work, as well as certain minimum break periods, that may be more readily enforceable. If other member states do not allow for derogations from the 10-hour limit on night work this may also raise issues and should be taken into account.

Next week's article will be the first in a series of four on the Government's recently issued consultation document Work and Families: Choice and Flexibility.

Sue Nickson is International Head of Employment at Hammonds (Sue.Nickson@Hammonds.com)

Further information on Hammonds Solicitors can be accessed at www.hammondsuddardsedge.com