Emergency Drivers' Hours and proposed changes to DDA

Emergency Exemption & Temporary Relaxation of Drivers’ Hours and Working Time Rules

Emergency Exemption & Temporary Relaxation of Drivers' Hours and Working Time Rules

Guidance

July 2010 Background

1. The EU drivers' hours and sector-specific working time rules for mobile workers limit the amount of driving and working time that can be carried out by most Heavy Goods Vehicle (HGV) drivers and about half the bus and coach drivers in the UK. The UK domestic drivers' hours rules apply to most goods and passenger vehicles that are exempt from the EU rules. Further details on the EU and domestic drivers' hours and EU working time rules can be found at Annex A.

2. The rules and/or enforcement of the rules can be relaxed in times of emergency or in exceptional circumstances. In an emergency, the rules automatically cease to apply for the purpose of dealing with the situation. The EU drivers' hours rules allow relaxations to be made in exceptional circumstances for up to 30 days, provided the European Commission (EC) is immediately notified. Any relaxation of the EU rules for longer than 30 days requires authorisation from the EC. Any relaxation of the domestic rules is the responsibility of the DfT and the EC does not have to be notified. A summary of the legislation which provides the powers to relax the rules, as well as definitions of an "emergency", are attached at Annex B.

Emergency exemption

3. Under the domestic rules an emergency is considered to be an event which needs immediate preventative action to avoid:   

- Danger to life or health of people or animals;

- Serious interruption to the maintenance of public services (e.g. water, gas, electricity, drainage) or in the use of roads;

- Serious interruption in private or public transport; or

- Serious damage to property.

There are slight differences in the definition of "emergency" for goods and passenger vehicles. See Annex B for details.

4. The EU rules already provide an automatic exemption for vehicles (including vehicles used in the non-commercial transport of humanitarian aid) used in emergencies or rescue operations. Although the EU rules do not define an emergency, the DfT considers that this would include any of the events considered under the domestic rules (as set out in paragraph 3 above).

5. The DfT's view is that vehicles engaged on work closely associated with the immediate response to a specific emergency will benefit from this exemption where they are working on alleviating either the immediate impact or effects of that emergency. One example of such work would be where vehicles are being used to transport sand or other materials urgently needed to shore up flood defences, or to grit roads or clear highways of snow in extreme weather events (e.g. 1 in 20 year events).

6. Where drivers are engaged in an emergency event, the EU and domestic rules can be temporarily disapplied without prior referral to the DfT. For example, if adverse weather conditions make it unsafe to stop, a driver engaged in responding to the emergency may extend their driving time in order to reach a place of safety for their passengers or load and themselves. However, if the event is likely to be more than a 'one-off' event, then drivers/operators should contact the DfT or their local VOSA office to ensure that the proposed reliance on the emergency exemption is appropriate.

7. In such circumstances, the emergency exemption from the rules can only be relied on to the extent and only for so long as is absolutely necessary to deal with the urgent and immediate requirements of the emergency and cannot be accommodated within the normal flexibilities of operation. If drivers/operators are uncertain as to whether their drivers are engaged in work closely connected enough with the emergency they will need to seek guidance from the DfT or their local VOSA office.

Temporary relaxation in exceptional circumstances

8. Where the automatic emergency exemption does not apply, in exceptional circumstances a temporary relaxation (for both the domestic and/or EU rules) can be considered. This is usually in response to a specific incident and limited to specific transport operations. In these circumstances, an administrative relaxation of the enforcement of the rules, or a formal relaxation of those rules (by way of a statutory instrument (SI)) is required.

9. A relaxation can only be considered in exceptional circumstances and not in cases where an avoidable situation has arisen due to a lack of contingency planning on the part of drivers and/or operators.

10. The exact nature of any relaxation is determined by the nature and scale of the incident. The scope of any relaxation should consider which drivers / freight operators / geographical areas are affected, and the estimated length of time any relaxation is required. No set guidelines exist for relaxing the rules as each event has its own characteristics that need to be considered. Any relaxation must be reasonable and proportionate to the nature and scale of the incident.

11. The lead Government Department and/or Devolved Administration is responsible for collecting evidence and formulating a case for any request for relaxation (see Annex C for further details). This requires in-depth liaison with the relevant industry sectors. It is their responsibility to provide sufficient evidence that an exemption can be justified. Insufficient evidence, or a delay in submitting it, will result in the process being delayed. Whilst the lead Government Department / Devolved Administration must provide the case for relaxation, it is important that DfT officials are kept informed of developments.

12. Although the ultimate decision to relax the drivers' hours rules is for DfT Ministers, that decision is taken in close consultation and collaboration with the lead Government Department and/or Devolved Administration. Ministers of the lead Government Department and/or Devolved Administration are expected to approve the request for relaxation prior to the formal request being submitted to the DfT. Once received, the formal request will then be considered by DfT Ministers.

Working time

13. In certain circumstances it may also be necessary to relax the rules on working time for mobile workers. If the emergency exemption is relied on, it is unlikely that the relevant provisions of the Road Transport (Working Time) Regulations 2005 (S.I.2005/639) will apply, to the extent that they conflict with the requirements of responding to the emergency. They will, however, remain subject to all other requirements of the Working Time Regulations in an emergency event. If compliance with these rules interferes with responding to the emergency then operators should, in the first instance, notify VOSA who, depending on circumstances, would expect to be able to adopt a common sense approach to enforcement.

14. In any case in which relaxation is sought because exceptional circumstances exist, the relevant working time rules can also be relaxed in the same way (i.e. either by administrative relaxation of enforcement of the rules or by SI).

Recording

15. Drivers must continue, where usually required, to record their work (either manually or by using a tachograph), noting the reasons why limits have been exceeded (on the back of record sheets or tachograph printouts). This is essential for enforcement purposes and applies to both emergency exemptions and temporary relaxations.

General principles

16. The general principles the DfT looks for when granting a temporary relaxation include:

 - Evidence of detriment to a wider community: Because the DfT are considering relaxing a key road safety measure (and in some cases potentially involving the movement of high consequence dangerous goods) there must be evidence of real harm being caused to a significant group of businesses, groups or individuals. Short term survivable economic harm is not sufficient in itself, but could be taken into account with other problems in certain cases.

- There are no other means of mitigating the detriment or other means have proved insufficient: All other means should have been tried or investigated and proved impracticable (e.g. the use of driver agencies / hire vehicles / back-office staff / alternative rostering arrangements).  Drivers' hours relaxations should not be sought (or agreed) just because they are cheaper than other solutions or because sufficient contingency planning has not taken place by the sector concerned.

- There must be evidence that the constraints imposed by the drivers' hours' rules are causing or contributing to the problem and that a relaxation would lead to a significant improvement in the situation: There must be evidence that insufficient haulage capacity is causing the problem or preventing other means of resolving it, and that relaxing the hours will provide essential additional haulage capacity that will help to alleviate the problem.

- The problem is not likely to be resolved quickly without intervention.

- Operators can demonstrate that they will take steps to ensure safety if rules are relaxed: This is a general point. But it is particularly important where the relaxation is being sought for high consequence dangerous goods (such as fuel), industry will need to undertake a risk assessment and advise what measures they are taking to mitigate risk from fatigue.

Other information required

17. The DfT also needs to know:

- Who the relaxation should apply to and for what purposes; i.e. a few named operators or to a whole sector; across the UK or a specific region?

- Detailed information about incidence of shortages (if any) being caused: who is affected, numbers and geographical spread?

- How the position may change over time - for better or worse?

- Other mitigating measures which have been considered or taken and their effect or why they have been rejected?

- Information on the limitations on haulage capacity and their effects on dealing with the problem. A key issue here is whether the problem is just at a certain time (e.g. weekends) or whether rotas are spread so that it is a problem throughout a week. How would a drivers' hours rules relaxation help?

- Anticipated duration required for relaxation.

Timescales

18. Once sufficient evidence has been provided (assuming an automatic exemption does not apply), and DfT Ministers are content that a relaxation is justified:

- Informal administrative relaxation of enforcement of the rules should take no more than 24/48 hours;

- Legal relaxation of the rules (by way of an SI) should take no more than 3 days.

DfT Contacts

19. During normal office hours the lead Government Department should contact the Freight & Logistic Division at DfT on 020 7944 5813 or 020 7944 2752. Out of hours please contact the DfT Duty Office on 020 7944 5999.

Department for Transport

July 2010 Annex A

EU and domestic drivers' hours and

EU working time rules

 The EU drivers' hours rules (Regulation (EC) 561/2006)

 The rules apply to goods vehicles over 3.5 tonnes and passenger carrying vehicles with 10 or more seats unless covered by a range of specific EU-wide exemptions and national derogations relating to the type of vehicle and/or its use. Drivers in scope of the EU rules are required to use a tachograph.

 There are many exceptions but in simplified terms the main EU limits are:

- 9 hours maximum daily driving;

- 56 hours maximum weekly driving;

- 90 hours maximum fortnightly driving;

- 11 hours minimum daily rest;

- 45 hours minimum weekly rest;

- 45 minute breaks for every 4½ hours driving.

UK domestic drivers' hours rules

Drivers of vehicles which are outside the scope of the EU rules are, with a limited range of exceptions, covered by the domestic rules. The following sectors are likely to work under the domestic rules:

- Vans not exceeding 3.5 tonnes (in Great Britain (GB) but not in Northern Ireland (NI) where all vans are exempt);

- Tradesmen (e.g. building / construction);

- Passenger transport (operating on regular routes up to 50km).

- NHS & publicly owned medical vehicles;

- Refuse collection;

- Local authority services for the elderly & disabled;

- Milk (not including bulk milk tankers);

- Utilities & road maintenance (e.g. gas / water);

- Breakdown;

- Agricultural, fishing and forestry (used within a 100km radius from the base of operations);

- Charity work (where employed drivers are used);

- Special vehicles (e.g. vehicles that operate on natural gas, electric or are not capable of speeds over 40km);

- "Gritters" - vehicles designed for the spreading of rock salt directly onto roads/pavements.

The main limits and requirements for goods vehicle drivers are:

- 10 hours maximum daily driving;

- 11 hours maximum daily duty.

In simplified terms the main limits and requirements for passenger vehicle drivers are:

- 10 hours maximum daily driving;

- 16 hours maximum daily duty;

- 10 hours daily rest;

- No weekly rest requirement;

- At least one period of 24 hours off duty in any two consecutive weeks.

Road Transport (Working Time) Regulations 2005

(SI 2005/639)

These Regulations implement Directive 2002/15/EC and apply to mobile workers (i.e. drivers & crew) who work on vehicles subject to the EU drivers' hours rules. The Regulations stipulate a maximum 48 hour average week and no more than 60 hours in any single week (there is no opt out). If working at night then mobile workers must not work over 10 hours in any 24 hours period unless a collective or workforce agreement is in place (night-time is the period between 00:00 and 04:00 for goods vehicles and between 01:00 and 05:00 for passenger vehicles). The Regulations also provide minimum levels of breaks as follows:

- 30 minutes if daily working totals 6 to 9 hours;

- 45 minutes of breaks (which one must be of at least 15 minutes long) if working over 9 hours;

- The same rest requirements as the EU rules (see above).

Working Time Regulations 1998

(SI 1998/1833)

These Regulations implement Directive 2003/88/EC and apply to mobile workers (i.e. drivers & crew) who work on vehicles subject to the domestic drivers' hours rules. However, as mobile workers, only certain requirements apply, namely:

- Average weekly working time of 48 hours (with the possibility to opt out);

- Health checks for night workers;

- Requirement for "adequate" rest^[1] (the length of which is not defined).

Annex B

Relevant legislation

European

The EU drivers' hours rules already provide an automatic exemption for "vehicles, including vehicles used in the non-commercial transport of humanitarian aid, used in emergencies or rescue operations" (article 3(d) Regulation (EC) 561/2006). These rules do not define an "emergency" but DfT considers this would include any of the situations which would be considered an emergency for the purposes of the UK domestic drivers' hours' legislation (below).

Article 14(2) of Regulation (EC) No 561/2006 also provides the Secretary of State for Transport with the power to grant a temporary relaxation of drivers' hours rules for a period not exceeding 30 days, provided the European Commission is immediately informed. For a relaxation period longer than 30 days, authorisation from the European Commission is required.

Domestic

Domestic drivers' hours regulations do not apply during an emergency situation. The definition of "emergency" differs slightly between goods and passenger vehicles.

Goods

The definition of an emergency for goods vehicles is set out in regulation 2 of the Drivers' Hours (Goods Vehicles) (Exemptions) Regulations 1986 (SI 1986.1492). It is defined as:

Events which cause or are likely to cause danger to life / health of humans or animals; serious interruption to infrastructure (such as water, gas, etc); serious interruption to roads, railways, ports or airport AND the event necessitates the taking of immediate action to prevent / continuance of the danger or interruption OR events likely to cause serious damage to property.

Passenger

The definition of an emergency for passenger vehicles is set out in regulation 2 of the Drivers' Hours (Passenger Vehicles) (Exemptions) Regulations 1970 (SI 1970/145). It is defined as:

Events which cause or are likely to cause danger to life / health of humans or animals; serious interruption to infrastructure (such as water, gas, etc);

serious interruption to roads, or to private or public transport; serious damage to property AND the event necessitates the taking of immediate action to prevent / continuance of the danger or interruption.

Under section 96(10) of the 1968 Transport Act, a Minister, by regulation, for the purpose of enabling drivers to deal with cases of emergency or otherwise to meet a special need, may create exemptions on the limits of drivers hours, dispense with the requirement to observe the enforcement of the regulations or grant certificates which confirms that any particular case fell within an exemption created by the regulation. The powers also provide that Traffic Commissioners can grant exemptions on an individual basis, and that such exemptions can be provided retrospectively.

Annex C

Lead Government Department / Devolved Administration - examples

^[1] "Adequate" rest is defined in the Department's guidance on drivers' hours and working time as meaning that "workers should have regular rest periods. These rest periods should be sufficiently long and continuous to ensure that workers do not harm themselves, fellow workers or others and that they do not damage their health in the short or long term".