It shouldn't be very difficult determining who is and who isn't a mobile worker, but unfortunately like all legislation, it isn't quite as clear cut as you'd imagine. In essence, the Regulations affect all drivers of 'In Scope Vehicles' and other 'mobile workers' who are involved in operations which are subject to the European drivers' hours rules (EC561/06) including own-account drivers and agency drivers. However, in some cases, the WTD will impact upon those drivers who are also governed by AETR operations.
What follows is an overview of the structure relating to mobile workers under the legislation.
Definition of a Mobile Worker
For the purposes of the legislation, a mobile worker is:
All drivers or crew members of 'In Scope Vehicles' - those vehicles fitted with Tachographs and who are required to comply with EC Drivers Hours Rules (EC561/06) - who drive or crew for 11 days (or more) within a reference period up to 26 weeks, or who drive or crew for 16 days (or more) within a reference period that exceeds 26 weeks.
Basically, this includes those workers listed below that fall within the definition of a mobile worker.
- Drivers and drivers mates
- Any agency driver or drivers mate
- Any person employed within a transport capacity, such as a warehouse operative, manager or supervisor who falls within the category of Mobile Worker regardless of their main job title.
- An owner-driver who works for his/her own limited company, thus making him/her no longer classed as self-employed
- Some drivers or crew members of 'In Scope Vehicles' who drive or crew and are subject to AETR operations regardless of the length of the reference period.
Mobile workers are covered by the Regulations if they are involved in operations subject to the European drivers' hours’ rules 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.
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 vehicle crew, but also trainees and apprentices) who is in the service of an undertaking which operates road transport services for the movement of goods. Mobile workers include drivers who work for hire and reward companies or companies with own account operations
Occasional Mobile Workers
The implied definition of an occasional worker for the purpose of the legislation is:
- All drivers and crew members (drivers' mate) of 'In Scope Vehicles' - who drive or crew for 10 days (or less) within a reference period up to 26 weeks, or who drive or crew for 15 days (or less) within a reference period of 26 weeks.
Therefore, if a worker is only occasionally undertaking activities covered by the EU drivers' hours’ rules, they are covered by the Working Time Regulations 1998, as amended (SI 1998 No. 1833 - 'the 1998 Working Time Regulations'), rather than these Regulations.
The Regulations are primarily for the benefit of the drivers and crew of vehicles participating in road transport activities under the EU drivers' hours’ rules. Drivers and crew who only occasionally participate in such activities are exempt from the Regulations. However, the requirements of the EU drivers' hours’ rules continue to apply, as do the requirements of the 1998 Working Time Regulations.
Self Employed Drivers
The Regulations did not affect self-employed drivers until May 2012 provided they fit the definition of self-employed.
However, the definition of a ‘Self Employed Driver’ is tightly drawn and this should be noted, as was reported in Transport Operator in May 2016 entitled - HMRC fires warning shot on ‘self-employed’ drivers.
In brief, Transport Operator reported that:
"Employers using agency drivers with self-employed status or who are hired through ‘umbrella’ companies have been warned by HM Revenue & Customs that they may well be breaking the rules, and could face substantial penalties.
Whether someone is employed or self-employed, is not a matter of choice but is determined by the particular terms and conditions under which a person works.
Broadly, someone is self-employed if they are in business on their own account and bear the responsibility for the success or failure of that business. They will be employed if they personally work under the control of their engager, and do not run the risks of having a business themselves…"
In March 2020, HMRC confirmed there will be no ‘U-turn’ on IR35 rules. Therefore it would be prudent for those who think they are Self Employed to visit - https://www.gov.uk/guidance/understanding-off-payroll-working-ir35
At the time of the Road Transport RTD (April 2005), the Department of Transport (Dft) noted that:
"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" (Regulation 2 of SI 2005 No. 639)".
Key considerations are that:
- A self-employed driver must have an operator's licence
- The amount of control that the driver has over their work is a key point, as is their reliance on profits to provide them with an income
- If the worker is restricted (either implicitly or explicitly) from working for another client/customer, then they would be covered by all the requirements of the Regulations
- In addition, most agency workers would not count as a self-employed driver because they are normally paid at a fixed rate. Once they accept a job, an agency worker is not free to organise their working activities
For the purpose of the Regulations, drivers who are partners in a firm or who have limited liability will be treated no differently to sole traders. Providing they have an operator's licence and meet the other requirements under the Regulations, then they can class themselves as a self-employed driver.
Agency Mobile Workers
All agency drivers or agency crew members will be expected to comply with the WTD if they fall within the bounds of the definition above. However, any agency drivers or agency crew members (drivers mate) of 'In Scope Vehicles' - who drive or crew for 10 days (or less) within a reference period up to 26 weeks, or who drive or crew for 15 days (or less) within a reference period over 26 weeks, will fall within the category of Occasional Mobile Workers.
At the time, the Dft define Agency Mobile Workers as:
Mobile workers who obtain work via an employment business or an employment agency are subject to terms and conditions under their contract with the business or agency. Workers are normally paid directly by an employment business, as part of their contractual relationship. The employment business is responsible for monitoring their work and keeping appropriate working time records.
However, some workers who obtain work via employment agencies (on a fixed or short term contract) are paid directly by and have a contract with the hirer. Under those circumstances, the hirer monitors working time and maintains adequate records. Where no written contract of employment exists, whoever directly pays the worker in respect of work undertaken will be regarded as the employer for the purposes of the Regulations.
Some workers register with and work for, more than one employment business. The calculation of working time must include work performed for all employers who undertake road transport activities under the European drivers' hours rules, during the reference period, so the worker must inform all such 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 or electronic data. If tachograph records are 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).
Nighttime is between midnight and 4 am for goods vehicles. If night work is performed, the daily working time should not exceed 10 hours in the 24 hour period in question. If a mobile worker does any work during the night time period, he/she will be subject to the night work limit. The night work limit can only be exceeded where this is permitted by a relevant workforce agreement. In a nutshell, these are the basics:
It is the duty of all employers to identify those workers who will be affected by this. Equally, if the number of hours worked prior to the introduction of the Directive is in excess of 10 hours during a 24 hour period, then consideration should be given to reducing them, or alternatively consulting the workforce as to whether an agreement can be put in place to maintain previously worked hours.