James Backhouse Director, Backhouse Jones
In August 2020, new regulations were introduced in relation to the recording obligations for drivers who work under the EU drivers’ hours rules. Whilst there was little to no notice given of these changes, they represented a substantial change in that drivers must now carry with them a full record of their work and rest for at least the last 28 days, in addition to the day on which they are currently driving.
Whilst drivers were previously required to carry 28 days’ worth of records, those records previously only needed to record driving, other work, POA and rest where the rest took place within the working day.
There was no need to record rest periods after the working day had finished and before the next day’s duty commenced or weekly rest, holidays and sick leave. That has all changed. Now these periods of rest must be recorded so that there is one continuous record for the 28-day period. In practice this means that when a driver returns to a vehicle from a period of rest, they must make a manual entry covering the period of rest up to the last time they worked.
The DVSA/DfT guidance states there are only three acceptable mechanisms for making the manual record:
• Manual entry on a digi-card;
• Manual record on a digital tachograph printout;
• Manual record on the back on an analogue card.
• In their initial guidance, the DVSA refused to accept an attestation as an alternative.
Lobbying
Whilst these requirements have been in force since 2020, there has been no enforcement nor much in the way of raising awareness. However, that position changed in 2022. Further guidance has been issued by the DfT and we are seeing operators called to Public Inquiry due to failing to comply with the new regulations. Nevertheless, there remains widespread ignorance of the changes.
As operators and drivers are becoming aware of the new recording requirements, difficulties in complying with them are emerging. In particular for occasional drivers, for example if their main role is something other than driving but they provide occasional driving cover. This category of driver would be required to make a manual record (in one of the three forms mentioned above) of all their other working duties, and rest, before they drive a vehicle that is covered by the EC drivers’ hours rules. Clearly a time consuming and onerous requirement. Non-compliance attracts significant potential sanctions including very large fines and even the potential for prison sentences in certain circumstances.
As a resulting of lobbying by the trade associations, the DfT have reviewed the interpretation of the requirement with a view to making the requirements more workable for drivers who only drive occasionally or as a part time-element of their employment.
Updated guidance
It remains the position that if a driver drives even for just part of one day in any week – midnight Sunday to midnight Sunday – a full record must be kept for that whole week with separate records for each 24-hour period, using one of the three methods stated above, breaking down their working time, POA, breaks and rest periods. The obligation to make this manual entry is created the next time that person is going to drive.
The change in position relates to where no driving has taken place in previous weeks. A record of work undertaken in those weeks is still required but it is acceptable for that week’s activities to be recorded in blocks, i.e. it is not necessary for an individual record to be made for each day. This summary can be recorded on one digital tachograph printout or analogue card. However, the summary of the work for those weeks must record the start and finish times of the duties during the period, as well as identify all the weekly rest periods within that week.
A further change to the previous guidance is that attestation forms will now be accepted as an alternative to an analogue card or a printout. However, for the attestation form to be valid, it must follow the prescribed form in the European regulation and cover the relevant periods, including rest, other work and periods of availability. Further, the DfT guidance states that a separate attestation is required for each activity, for example, one covering other work and another for weekly rest. The attestation must be signed by the operator and the driver.
For many occasional drivers the ability to use the attestation form will be much easier than using printouts/analogue cards. Note that the DfT guidance is valid for UK journeys only. The block recording may not be accepted in Europe. Drivers are advised to keep separate records for each of the last 28 days when they engage in driving on the continent.
Questions
It is anticipated that further guidance will be issued as this regime progresses. Points which perhaps require further guidance include:
• Whether an occasional driver needs to create a record beyond the current 28 day period if they haven’t driven for a much longer period.
• Whether a new driver needs to create a manual record of the 28 day period prior to their first day of driving?
• Is a record of daily rest periods as well weekly rest periods required in the weeks when no driving has been undertaken?
There are still many uncertainties and training for drivers and managers is essential. For further information, please contact Backhouse Jones’ regulatory team on 01254 828 300.
BACK Academy are providing training on the new requirements including the brand new DFT guidance requirements on 12 December 2022. For more information or to book your place, click here