Mobile Workers

Introduction
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 - formally EC3820/85) 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. The information blockquoted in Italics has been taken from the Department for Transport Website and credited as such.

Definition of a Mobile Worker
Occasional Mobile Workers
Self Employed Drivers
Agency Mobile Workers
Night Workers

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.
Any 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.

The DfT define Mobile Workers as: 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 or passenger vehicles suitable for carrying more than 9 people including the driver.

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 passengers or the movement of goods. Mobile workers include drivers who work for hire and reward companies or companies with own account operations.

Source - Department for Transport

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Occasional Mobile Workers
Our view of the definition of an occasional worker for the purpose of the legislation is as follows:

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 European 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 DfT define Occasional Mobile Workers as: The Regulations are primarily for the benefit of the drivers and crew of vehicles participating in road transport activities under the European drivers' hours rules. Drivers and crew who only occasionally participate in such activities are exempt from the Regulations. However, the requirements of the European drivers' hours rules continue to apply, as do the requirements of the 1998 Working Time Regulations.

Source - Department for Transport

Self Employed Drivers
The Regulations do not affect self-employed drivers until March 2009; provided they fit the definition of self-employed. The detail below has been taken from the DfT website in its entirety as its content is specific and unequivocal.

The DfT define Self Employed Drivers as: - Self-employed drivers (as defined under the Regulations) are excluded from all the requirements until March 2009. However, the definition of "self-employed driver" under the Regulations has been tightly drawn. Therefore, those who might be classed as self-employed for the purpose of the Employment Rights Act 1996 or the 1998 Working Time Regulations are not necessarily classed as self-employed under these Regulations. Nor is the test, the same as applied by HM Revenue and Customs.
As a consequence, only a limited number of drivers are likely to be regarded as a "self-employed driver" for the purposes of the Regulations.
"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.

Source - Department for Transport

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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.

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 (See Section 2.5 - "working for two or more employers or another organisation").

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).

Source - Department for Transport

Night Workers
Night time is between midnight and 4am for goods vehicles and 1am and 5am for passenger 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 are 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.
It should also be noted here, that employers are obliged to carry out health checks on night workers under the 1998 Working Time Regulations. However, please note that the definition of night worker is different under these regulations, therefore you should consult the Department for Business Enterprise and Regulatory Reform (formally the DtI) - see links below

Further Reading
For further reading on each particular heading, please use the links below which will take you directly to the appropriate section on the Dept for Transport (Dft) website.

WTD & EC561/06 Comparison Tables - Dept for Transport

WTD Guidance Notes - Dept for Transport

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