Driving is not working?

gh123 · 17 June 2018 at 9:27PM

Hello,

I am woring currently with a firm and do a Technical job, classed as a mobile worker, directly employed, on a permanent contract.

I am allowed to stay away in hotels but often (usually) have total daily travel time of at least four hours of driving, sometimes more than this, daily. This is not commuting as such, this is driving a company vehicle to various sites around the country, the locations changing on a daily basis.

I am aware that a few years ago, a company in Spain moved headquarters or something like that, increasing travel for their Engineers. They then tried to tell their Engineers that travel was not part of their job and that it was something extra that they should do for no extra pay.

I heard that the Engineers won the case and the European Work Time Directive was involved in this.

I am on a 37.5 hour a week contract but if I leave home two hours before my start time to reach a site for 9am, then do a full day at that site and drive 2 hours home afterwards then my work day, doing tasks relating to work, is 11.5 hours for 7.5 hours pay.

I then can be doing further paperwork at home in the evening or weekends. This 11.5 then becomes even more counting Admin.

The company says 'driving isn't working' but since I'm not driving as a hobby or driving to the supermarket, I would have thought that driving to a work destination would be a work-related task.

Should the Scenario be:

1. If I drive two hours each way then I should deduct this from the onsite time so that I only attend site for 3.5 hours, then add-in the 4 hour round trip makes it a 7.5 day counting travel? My contract is to work 7.5 hours per day.

2. Or should I be given time off in lieu for any extra hours travel in my spare time? Thus giving me back my free time that I gave away in the first place.

3. Or should I be paid to travel in my spare time?

4. If I have not signed a waiver to increase my weekly hours then what should my company be doing if they are aware I am doing 60 hour weeks or more? Should they be monitoring my total hours and making sure that they don't plan my work in a way which makes me go over my weekly limit? I hear this is 48 hours unless opted-out.

I did ask a couple of years ago but was told that they were watching the new ruling with regards to the Spanish case and would review the situation if and when the new rules came into place.

If I work one hour unpaid overtime, then does that mean that I was not paid the minimum wage for that time? ie. being paid £zero for overtime is less than the minumim wage?

I believe that the Work Time Directive did not state that you should be getting paid any more to travel but that travel did count as work time and therefore could be considered as work time when totalling up work hours. I could be wrong on this, though.

Any replies would be appreciated.

Thanks.

[Deleted User] · 17 June 2018 at 9:37PM

No. Commuting doesn't count as working.

jobbingmusician · 17 June 2018 at 10:44PM

My understanding (which is far from definitive!) is that your contract should state your place of work.If you live an hour from work, that hour comes out of your time. Commuting to this is not working. Driving to other workplaces is - and I *think* you can count the time it would take you to get there from your normal base. Which leads to the situation where if you start the day visiting your next door neighbour, you have already done an hour's work to get there, theoretically.

Your employer gets to choose the normal base. (It's obviously to your advantage if you can get them to designate your base as your home, as the times when your first port of call is your neighbour tend to be rare

)

I don't *think* they are allowed to use the 'and work at other locations as required' clause to get out of paying you travel and travel time to anywhere in the country. It they are intransigent, it might be worth a short visit to an employment solicitor for clarification...........

comeandgo · 17 June 2018 at 10:53PM

If you are a mobile worker then I think your hours driving are part of your days work. You have no office to leave from, your vehicle is your office. Do you have any union involvement, I think you need their help now.

getmore4less · 18 June 2018 at 1:14AM

Driving hours are counted as work time but the pay rate can be zero as long as it does not take you under min wage for a pay period.(min wage is not a per hour rate it is an average for a pay period).

System · 18 June 2018 at 9:46AM

Commuting is usually to a place of work, not between sites.

sangie595 · 18 June 2018 at 10:54AM

In this case, the ruling the OP refers to doesn't appear to be clear cut. My reading of the what the OP says is that they drive to a place, work there for the day, and then drive home. The relevant ruling was for mobile workers who drive between multiple sites. It is less clear for people who travel to a single site; and there is, as far as I am aware, no clarifying case law yet on that.

But before getting to that point, the issue here is not yet what the ruling might be. The OP is being unrealistic about how the law operates. They are asking which "option" the employer "must" adopt. The employer doesn't need to adopt any of them! If the OP is willing to do additional hours in the evening on paperwork and admin, if they are willing to travel for hours to a site, then why should the employer do anything? The OP needs to be unwilling to do these things. And the only way to show that is to refuse. The questions the OP is asking us here need to be addressed to the employer. And if they don't get an acceptable answer they need to submit a grievance. Then an appeal. And if they still haven't got anywhere them it's a tribunal.

There's no magic wand where someone just gets changes without asking for them. Or fighting for them if required. So the OP is being unrealistic expecting an answer here to questions only the employer can answer.

And one last point - there is absolutely no requirement for an employer to watch someone's timesheets and make sure that they plan their working week to not exceed 48 hours. The legislation actually works the other way around! The employer cannot require someone to work more than 48 hours on average. But anyone can voluntarily work as many hours as they like. I regularly work more than 48 hours, and I haven't signed an opt out. I don't need to, because I'm not required to work those hours. I do so because I want to. So again, this is down to the OP. If they wish to not work so many hots, they must stop working them!

bealine99 · 18 June 2018 at 11:10AM

If you drive a car or light van (under 3500 kg - vans over 3500 kg must keep tachograph records) for business for more than 4 hours a day, you must follow the Great Britain domestic rules on drivers hours.

They outline your working hours and the rest periods you must take.

You can be fined up to £300 for exceeding daily driving limits.

Great Britain domestic rules

How the drivers' hours Great Britain domestic rules work for goods vehicles.

Overview
The Great Britain domestic rules, as contained in the Transport Act 1968, apply to most goods vehicles that are exempt from the EU rules. Separate rules apply to Northern Ireland.

2.1. Domestic rules exemptions
The following groups are exempt from the domestic drivers hours rules:

drivers of vehicles used by the Armed Forces, the police and fire brigade
drivers who always drive off the public road system
private driving, ie not in connection with a job or in any way to earn a living
2.2. Domestic driving limits
Driving is defined as being at the controls of a vehicle for the purposes of controlling its movement, whether it is moving or stationary with the engine running, even for a short period of time.

Daily driving
In any working day the maximum amount of driving permitted is 10 hours. The daily driving limit applies to driving on and off the public road. Off-road driving for the purposes of agriculture, quarrying, forestry, building work or civil engineering counts as duty rather than driving time.

Day: The day is the 24-hour period beginning with the start of duty time.

Daily duty
In any working day the maximum amount of duty permitted is 11 hours. A driver is exempt from the daily duty limit (11 hours) on any working day when they do not drive.

A driver who does not drive for more than 4 hours on each day of the week is exempt from the daily duty limit for the whole week.

Week: Is the period from 0000 hrs on a Monday to 2400 hrs the following Sunday.

Duty: In the case of an employee driver, this means being on duty (whether driving or otherwise) for anyone who employs them as a driver. This includes all periods of work and driving, but does not include rest or breaks. Employers should also remember that they have additional obligations to ensure that drivers receive adequate rest under health and safety legislation.

For owner drivers, this means driving a vehicle connected with their business, or doing any other work connected with the vehicle and its load.

Drivers of certain vehicles are exempt from the duty but not the driving limit, namely goods vehicles, including dual purpose vehicles, not exceeding a maximum permitted gross weight of 3.5 tonnes, when used:

by doctors, dentists, nurses, midwives or vets
for any service of inspection, cleaning, maintenance, repair, installation or fitting
by commercial travellers when carrying goods (other than personal effects) only for the purpose of soliciting orders
by the AA, RAC or RSAC
for cinematography or radio and television broadcasting
2.3. Record keeping
You must keep written records of your hours of work on a weekly record sheet if you are the driver of a goods vehicle that requires an Operator Licence and you drive for more than 4 hours in that day. An example of such a sheet is at Annex 3. Operators are expected to check and sign each weekly record sheet.

Suppliers of record books containing weekly record sheets can be found on the internet.

Alternatively, an EU-approved and sealed tachograph may be used to record a driver's activities while they are subject to domestic drivers hours rules. When recording in this manner, and where domestic records are legally required (see flowchart below), all rules on the fitment and use of the tachograph must be complied with see Section 4

Where a tachograph is fitted to a vehicle subject to the domestic rules but is not used to produce a legally required record, the operator and driver should nevertheless ensure that the tachograph is properly calibrated and sealed. The tachograph does not have to be recalibrated provided the seals remain intact and the vehicle remains out of scope of the EU rules.

Exemptions from keeping records
Some groups are exempt from requirements to keep records under domestic rules on drivers hours.

2.4. Emergencies
The GB domestic rules are relaxed in cases where immediate preventative action is needed to avoid:

danger to the life or health of people or animals
serious interruption of essential public services (gas, water, electricity or drainage), of telecommunication or postal services, or in the use of roads, railways, ports or airports
serious damage to property
In these cases the driving and duty limits are suspended for the duration of the emergency.

2.5. Records for vehicles carrying postal articles
Tachographs must be fitted and used on all vehicles with a permissible maximum weight in excess of 3.5 tonnes that carry parcels and letters on postal services. Drivers of such vehicles may be exempt from the EU rules on drivers hours (see EU rules exemptions) but, if so, must still comply with the GB domestic rules.

2.6. Travelling abroad
The GB domestic rules apply only in GB, but you must observe the national rules of the countries in which you travel. The embassies of these countries will be able to assist in establishing the rules that might apply.

For example, German national rules require drivers of goods vehicles between 2.8 and 3.5 tonnes to record details of their journeys in an AETR-style log book. This means that UK drivers have to use the log book when they set out and while driving through the countries on journeys to or through Germany. Copies of these log books can be obtained from the Road Haulage Association (Tel: 01733 263434).

2.7. Mixed vehicle types
If it occurs that a driver divides their time driving goods vehicles and passenger vehicles under GB domestic rules, then in any working day or week, if they spend most of their time driving passenger vehicles then the appropriate GB rules for passenger vehicles apply for that day or week.

2.8. Working Time Regulations
Drivers who are subject to the UK domestic rules on drivers hours are affected by four provisions under GB Working Time Regulations 1998 (as amended).

See Annex 2 for more details.

Driving is not working?

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