DRIVERS’ HOURS AND TACHOGRAPHS – GETTING THINGS RIGHT

Issues arising from breaches of the tachograph or drivers’ hours rules are common features of many Public Inquiries or court prosecutions.

Operators frequently fall foul of the law by not having proper systems and procedures in place, by not training drivers or monitoring them and by failing to take disciplinary action.  Many operators mistakenly think that when the bad weather comes and the legislative requirements are relaxed this provides an easy "opt out" but this is not always the case.  In this article we aim to educate operators as to what is required from a proper drivers' hours and tachograph system in 2011. 

Any system that is to be accepted by the enforcement authorities or Traffic Commissioners must have at its core two fundamentals, proper equipment and drivers who know how to use it.  Operators must ensure that the tachograph recording equipment fitted to their vehicles is properly calibrated and inspected and is in working order.  Furthermore, if it is the analogue type of device, then the proper charts must be issued for that equipment.  An operator cannot assume that any chart can be used with any tachograph.  Only certain approved types of charts will work correctly with the device.  If the vehicle has the newer digital tachograph fitted then the driver must have the appropriate digital driver card.  If the driver does not have the card then with limited exceptions he cannot drive. 

Having the correct equipment is only part of the requirements for setting up the system.  The next element is for the driver to be properly trained.  Whilst drivers' knowledge is improving following the introduction of the mandatory driver CPC qualification, many drivers have still not received any formal training on the subject of drivers' hours and tachographs.  A surprising number of drivers learn their knowledge at the truck stop and more often than not this is wrong!

Whenever a new driver starts with an operator, he or she should be given a full induction which includes specific training on drivers' hours and tachographs.  This might include showing the driver one of the various DVD's which are available and produced by organisations such as VOSA or the FTA.  Drivers should also be given written reference materials which they can then refer to should any issues arise during the course of the working day.   Training should not, though, be simply restricted to the initial induction.  The driver should receive regular refresher training (for example as part of the driver CPC) and certainly if, as we describe below, any infringements are found.  It is also recommended that all training should include an element of testing the driver's knowledge.  An operator cannot assume that just because the driver has watched a DVD he fully understands the rules and regulations.   Test records can prove invaluable to the operator in establishing that a driver has been trained and fully understands the law.  This can negate claims by the driver that he or she did not know what he was doing. I recently represented one company when it was being prosecuted in relation to numerous offences committed by a driver by failing to take an appropriate break after four and a half hours driving. In his interview with VOSA the driver had claimed that he was never trained on the law and did not know the rules - at trial we presented his training records and his test paper where he had scored full marks on this particular subject. Needless to say this put a very different perspective on the case but had the operator not had these documents then they really would have struggled to establish that their systems were up to the mark.

Once the driver has been trained and the correct equipment is in place, there must be a thorough system for recovering the tachograph charts or digital data.  Many operators have systems of spreadsheets showing which drivers used vehicles on specific days.  This helps to ensure that all charts and data are recovered.  Where vehicles use digital tachographs, regular downloads must also be made of the vehicle units.  Operators cannot simply rely on downloading the driver's smart card.  There is a legal requirement to download the vehicle unit at least once every 56 days.  By comparing the vehicle and driver downloads, missing mileage can be traced and hopefully an explanation provided. 

Once the data has been obtained then it must be analysed promptly.  Whilst the driver is entitled to have in his possession his current day's tachograph chart and those for the previous 28 days, many operators utilise systems whereby charts are scanned and returned to drivers.  This enables the chart to be analysed on the day it was created or during that week.  It is not acceptable to wait 5 or 6 weeks after a chart has been created for it to be analysed

The analysis of the chart must be correct and operators are recommended to regularly audit the quality of the information being provided.  This might be done by way of using a second analysis bureau to double check a portion of the original information supplied by the person conducting the first analysis. As with the maintenance of vehicles, quality control is vital and the authorities expect operators to 'check the checker'.

Once the tachograph data has been analysed it must be acted upon.  Many operators simply receive the analysis and file it in the "to do later" pile.  It never gets looked at, drivers never get spoken to and offences go undetected. The Traffic Commissioners and enforcement authorities expect the analysis to be looked at promptly and the driver to be taken through any infringements which may come to light.  Written records should be kept of any explanation given by the driver for his infringements - this helps to establish the fact that firstly the driver has been spoken to and secondly to promptly record any potential defence.  The infringements of the driver should be compared against previous analysis to see if there are any trends developing, for example if he is regularly committing daily rest offences.  If any individual problems are so serious as to merit it or alternatively a clear trend is beginning, the driver should either be retrained or disciplined as appropriate.  Serial offenders should receive formal written warnings and, depending on the circumstances, dismissed.

Many operators are reluctant to discipline or dismiss drivers, not only for tachograph and drivers' hours infringements but also for other failures, for example not conducting proper daily defect inspections. Once again the authorities will have little sympathy for operators who fail to act. Not disciplining a driver because 'he is a good lad' is tantamount to accepting that you are happy to send him out, knowing that it is more than likely that he will commit offences, just to get the job done. A Traffic Commissioner may take the view that such an operator is more concerned about profit than with safety and complying with the law.

Whilst all of the above may seem harsh and onerous on both operator and driver, these are a summary of the systems expected in the current day.  An operator will have to be able to provide good justification for departing from these basics. 

Occasionally, as at the end of 2010, the drivers' hours and tachograph rules are relaxed when there is severe weather.  Frequently these relaxations only affect the requirements with regards to driving time or daily and weekly rest.  They frequently do not affect the requirement to keep records and properly analyse them.  However, it must be borne in mind when the data is analysed, the results should be looked at in the context of any relaxation which might be appropriate to the operator.  The relaxations which are issued usually relate to specific named industries or movements of specific types of load.  They do not normally apply to all commercial goods vehicles subject to the European legislation. 

For more information with regards to systems ensuring compliance with drivers' hours and tachograph law, please contact Andrew Woolfall at Backhouse Jones Solicitors on 01254 828300 or email andrew.woolfall@backhouses.co.uk