The Department for Transport has issued specific guidance on recording furlough for working time purposes and the downloading of driver card and vehicle unit data during the pandemic. The guidance essentially mirrors the advice that we have already been providing to operators by confirming the following.
Furlough and Working Time
How should furlough be recorded for working time purposes?
The starting point is that furlough does not count towards working time. There is therefore no requirement for you to record anything in your tachograph analysis systems to account for periods of furlough. That said, we are aware that some tachograph analysis software providers have developed a specific ‘furlough’ mode within their systems, which can be used to identify those drivers who are furloughed without impacting on your calculations of drivers’ working time.
What if a driver completes training whilst furloughed?
Drivers can complete training whilst furloughed and the guidance specifically confirms that this will not count towards working time (albeit in normal circumstances training would count as working time).
What if a driver works for someone else whilst furloughed?
Drivers are (subject to the terms of their contract of employment) permitted to undertake work for other, temporary, employers during furlough and should keep a record of any such time (any work that falls within the scope of the EU drivers’ hours rules should be recorded by the driver using the tachograph equipment).
You (as their normal employer) must obtain a record of this other work from drivers – regardless of whether it is driving or non-driving work – and this must be included in your calculation of drivers’ working time. This exercise should be completed before drivers return to work and go back out on the road after furlough so that you can satisfy yourself that they are properly rested and have sufficient working time available to complete the work.
The same principle applies if you are the temporary employer of a driver who has been furloughed by their normal employer – you must obtain a record of the work completed for their normal employer and include this in your calculation of their working time.
What if a driver takes annual leave whilst furloughed?
Drivers can take annual leave whilst furloughed. In normal circumstances, any statutory leave must be recorded for working time purposes as ‘leave’ (i.e. 48 hours per week or 8 hours per day) and the guidance confirms that the same applies to leave taken whilst furloughed. Any leave taken over and above the statutory 5.6 weeks’ leave does not count towards working time.
Obviously, drivers who are still working and driving for you during the pandemic need to continue to download their driver card within the maximum permitted 28 days. The guidance recognises that this might not always be possible during the pandemic if, for example, the place where the downloading equipment is located is inaccessible due to COVID-19. In these circumstances – i.e. if the downloading frequencies cannot be complied with due to COVID-19 – the guidance suggests that a record should be kept documenting why the download has not been completed on time and this should be retained for production to the DVSA if required.
What about furloughed drivers?
During furlough, you are not required to download their driver card every 28 days, as they are not undertaking any driving work for you. You should have downloaded driver’s driver cards at the end of their last duty period before furlough and you should download them again prior to the drivers’ first shift when they return from furlough.
If drivers are working for a temporary employer during furlough and are undertaking work within the scope of the EU drivers’ hours rules, the downloading obligations during that period fall to the temporary employer (and not you, unless you are the temporary employer!).
You must continue to download vehicle units within the maximum permitted 90 days; however, the guidance recognises that this might not always be possible during the pandemic. In these circumstances – i.e. if the downloading frequencies cannot be complied with due to COVID-19 – the guidance suggests that a record should be kept documenting why the download has not been completed on time and this should be retained for production to the DVSA if required. We would suggest that, as a minimum, you should have downloaded the vehicle unit prior to parking any vehicles up and should download the vehicle unit again immediately prior to bringing vehicles back into service. Our advice would be that vehicle unit downloads should be much more frequent than 90 days – in normal circumstances typical periods are 4 weekly or even every week.
For further advice or assistance, contact the Regulatory team at Backhouse Jones on 01254 828300 or Regulatory@backhouses.co.uk