Enforcement and penalties
Fixed penalties and deposits
Following the Road Safety Act 2006, fixed penalties and deposits were introduced during 2009. Infringing drivers with verifiable UK addresses are, in the most routine cases, dealt with by means of a fixed penalty which can be considered by the driver for up to 28 days. Drivers without a verifiable address are asked to pay a deposit equal to the fixed penalty and further driving will be prohibited pending receipt of that payment. VOSA can still take cases to court if it is deemed necessary.
Enforcement powers and sanctions Powers
Legislation has provided VOSA Authorised Examiners with powers that include:
the power to inspect vehicles;
the power to prohibit and direct vehicles;
powers relating to the investigation of possible breaches of regulations; and
the power to instigate, conduct and appear in proceedings at a magistrates' court.
Action taken against drivers' hours and tachograph rules infringements is largely determined by the legislation, and includes the following:
Minor infringements that appear to enforcement staff to have been committed either accidentally or due to the inexperience of the driver/operator and are isolated instances may be dealt with by means of a verbal warning. This will include a clarification of the infringement and an explanation of the consequences of continued infringement.
Offence rectification notice
These may be issued to operators for a number of infringements not related to safety, and give them 21 days to carry out a rectification of the shortcoming otherwise prosecution will be considered.
Many drivers' hours and tachograph rules infringements attract a prohibition. A prohibition is not strictly a 'sanction', rather an enforcement tool to remove an immediate threat to road safety. When issued, driving of the vehicle is prohibited for either a specified or an unspecified period until the conditions stated on the prohibition note are satisfied. Where the prohibition is issued for an unspecified period, a note indicating the removal of the prohibition must be issued before further use of the vehicle is permitted. In addition to attracting a prohibition, the matter will be considered for prosecution.
If it's considered to be in the public interest, more serious infringements are considered for prosecution, either against the driver, the operator or other undertakings, or against all of them.
Referral to the Traffic Commissioner
Where the driver is the holder of a vocational licence and/or the operator is the holder of an operator's licence, enforcement staff may report infringements by either the driver or the operator to the Traffic Commissioner instead of, or as well as, prosecution. This may occur when enforcement 40 staff believe the matter under consideration brings into doubt the repute of the driver/operator and subsequently call on the Traffic Commissioner to decide whether any administrative action should be taken against their licences.
Infringements of domestic drivers' hours rules
Where an infringement of the domestic drivers' hours rules occurs, the law protects from conviction in court those drivers who can prove that because of unforeseen difficulties they were unavoidably delayed in finishing a journey and breached the rules. It also protects employers if any driver was involved in other driving jobs that the employer could not have known about.
Infringements of the EU drivers' hours rules The law protects from conviction in court, those drivers who can prove that because of unforeseen difficulties they were unavoidably delayed in finishing a journey and breached the rules.
The EU rules make transport undertakings liable for any infringements committed by their drivers. However, transport undertakings will not be held responsible for these offences if they can show that at the time of the infringement the driver's work was being organised in full consideration of the rules, and in particular that:
no payments were made that encouraged breaches;
work was properly organised;
the driver was properly instructed; and
regular checks were made.
Transport undertakings must also show that they have taken all reasonable steps to avoid the contravention. Employers also have a defence if they can prove that the driver was involved in other driving jobs that the employer could not reasonably have known about. Where it is found that an undertaking has failed in its obligations, prosecution action may be considered against the undertaking for a driver's offence.
In the case of infringements concerning records, the law protects an employer from conviction if they can prove that they took all reasonable steps to make sure that the driver kept proper records.
Under the EU rules, enforcement action can be taken against operators and drivers for offences detected in GB but committed in another country, provided the offender has not already been penalised.
To prevent further penalties being imposed for the same offence, enforcement agencies must provide the driver with evidence of the proceedings or penalties in writing. The driver is required to carry the documentation until such time as the infringement cannot lead to further action.
EU rules: co-liability
The EU rules also make undertakings such as tour operators, principal contractors, sub-contractors and driver employment agencies responsible for ensuring that contractually agreed transport time schedules respect the rules on drivers' hours.
The undertaking must take all reasonable steps to comply with this requirement. If a contract with the customer includes a provision for transport time schedules to respect the EU rules, then the requirement would normally be satisfied. However, a driver employment agency is unlikely to absolve itself from the liability if it is found to have been offering back-to-back jobs to drivers where it will be impossible for the driver in question to take a daily or weekly rest in between those jobs.
Penalties for infringements of the drivers' hours rules in Great Britain Maximum fines
As contained within Part VI of the Transport Act 1968 (as amended), the maximum fines that can be imposed by a court of law on conviction are as follows:
Penalties for infringements of the drivers' hours rules in Great Britain Maximum fines As contained within Part VI of the Transport Act 1968 (as amended), the maximum fines that can be imposed by a court of law on conviction are as follows: u failure to observe driving times, breaks or rest period rules: fine of up to £2,500
failure to make or keep records under the GB rules: fine of up to £2,500 (Level 4);
failure to install a tachograph: fine of up to £5,000 (Level 5);
failure to use a tachograph: fine of up to £5,000 (Level 5);
failure to hand over records relating to recording equipment as requested by an enforcement officer: fine of up to £5,000;
false entry or alteration of a record with the intent to deceive: on summary conviction fine of £5,000, on indictment two years' imprisonment;
altering or forging the seal on a tachograph with the intent to deceive: on summary conviction fine of £5,000, on indictment two years' imprisonment; and
failure to take all reasonable steps to ensure contractually agreed transport time schedules respect the EU rules: fine of up to £2,500 (Level 4).
Working time rules
The working time rules that apply to you depend on whether you drive a vehicle in scope of the EU or GB domestic drivers' hours rules.
If you are driving under the EU drivers' hours rules
If you operate a vehicle in scope of the EU drivers' hours rules, then you are subject to the Road Transport (Working Time) Regulations 2005 (as amended - 'the 2005 Regulations'), unless you are an occasional mobile worker (see text boxes at the end of this Annex for definitions).
The main provisions of the 2005 Regulations are as follows
Weekly working time must not exceed an average of 48 hours per week over the reference period. A maximum working time of 60 hours can be performed in any single week providing the average 48-hour limit is not exceeded.
Night work: if night work is performed, working time must not exceed 10 hours in any 24-hour period. 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 10-hour limit may be exceeded if this is permitted under a collective or workforce agreement.
- Mobile workers must not work more than 6 consecutive hours without taking a break.
- If your working hours total between 6 and 9 hours, working time should be interrupted by a break or breaks totalling at least 30 minutes.
- If your working hours total more than 9 hours, working time should be interrupted by a break or breaks totalling at least 45 minutes.
- Breaks should be of at least 15 minutes' duration.
Rest: the regulations are the same as the EU or AETR drivers' hours rules.
Record keeping: records need to be kept for two years after the period in question.
The reference period for calculating the 48-hour week is normally 17 weeks, but it can be extended to 26 weeks if this is permitted under a collective or workforce agreement. There is no 'opt-out' for individuals wishing to work longer than an average 48-hour week, but breaks and 'periods of availability' do not count as working time.
Generally speaking, a period of availability (POA) is waiting time, the duration of which is known about in advance. Examples of what might count as a POA are accompanying a vehicle on a ferry crossing or waiting while other workers load/unload your vehicle. For mobile workers driving in a team, a POA would also include time spent sitting next to the driver while the vehicle is in motion (unless the mobile worker is taking a break or performing other work i.e. navigation).
In addition, you are affected by two provisions under the Working Time Regulations 1998 (as amended - 'the 1998 Regulations'). These are:
an entitlement to 4.8 weeks' paid annual leave (increased to 5.6 weeks from 1 April 2009); and
health checks for night workers.
If you only occasionally drive vehicles subject to the EU drivers' hours rules, you may be able to take advantage of the exemption from the 2005 Regulations for occasional mobile workers (see text box opposite to see if you meet the criteria).
Self-employed drivers are now in scope of the EU Working Time Directive 2002/15/EC which the Road Transport (Working Time) Regulations 2005 implement. At the time of publication, the UK had not transposed the necessary changes into domestic legislation.
VOSA enforces the provisions of the 2005 Regulations and the requirement for health checks for night workers (under the 1998 Regulations). If you have any questions about matters relating to annual leave, call the Advisory, Conciliation and Arbitration Service (Acas) national helpline on 08457 47 47 47.