Constructive Dismissal

UK PROFESSIONAL DRIVERS FORUMS THE UK PROFESSIONAL DRIVERS FORUM (INTERACTIVE)
1

I walked out on Saturday after an argument over the Tacho laws.

I’m 100% confident that what they are pressuring their drivers to do is illegal & 100% confident that they know it.

Has anyone gone this route & won a tribunal for constructive dismissal■■?

Briefly: It’s a recovery Co’ working inside & outside the 100km radius. Inside 100km & it’s tacho exempt, outside then tacho rules come into play. They seem to think that you can work for 10hrs+ inside 100km without a tacho then do a job which will take you outside the radius requiring a tacho.

They are telling their drivers that the tacho rules only come into play when the tacho is first used.

e.g. 1

Start 7.00am.
Job 1 @ 7.00am 10mls = exempt
Job 2 @ 11.00am 15mls = exempt
Job 3 @ 9.00pm 180mls = tacho

They claim that a driver will have 9 hrs of driving time from 9pm !

e.g 2

Start 7.00am.
Job 1 @ 7.00am 10mls = exempt
Job 2 @ 11.00am 15mls = exempt
Job 3 @ 9.00am the following day 180mls = tacho

Drivers are onsite, on call 24hrs a day for a 72hr period (caravans). Although there is more than 12hrs since the last job this cannot be classed as a rest period.

IMO they know they are asking their drivers to break the law, they also think they are immune should the driver be pulled as they believe it is 100% the drivers responsibility to ensure they are complying.

They MUST be aware that as no qualifying rest period can be taken whilst onsite & on call then any job requiring tacho after the first 9hrs of starting a 72hr shift is breaking the law.

2

Going by your example

Start 7.00am.
Job 1 @ 7.00am 10mls = exempt
Job 2 @ 11.00am 15mls = exempt
Job 3 @ 9.00pm 180mls = tacho

I would say that was legal, because between jobs 2 and 3 you had 10 hours off so if the tacho rules applied then technically you would have had a 9 hr reduced break therefore making it legal. And as for example 2

Start 7.00am.
Job 1 @ 7.00am 10mls = exempt
Job 2 @ 11.00am 15mls = exempt
Job 3 @ 9.00am the following day 180mls = tacho

Between jobs 2 and 3 you had 22 hours off so a legal break has been taken.

I am not sure why you cant class these breaks as rest periods, are you not free to dispose of your time as you feel fit between these jobs?

I am no expert and this is just my opinion and i am probably way wrong but it looks to me like you have just walked out of a job for no reason. :frowning:

3

e.g. 1

Start 7.00am.
Job 1 @ 7.00am 10mls = exempt
Job 2 @ 11.00am 15mls = exempt
Job 3 @ 9.00pm 180mls = tacho

Each 24 period must have a minimum 9 hour rest period in it

It seems your daily shift for this 24 hour period started at 0700 (7am)
Did your shift finish by 2200 (10pm) :question: - if not then it is illegal

Did you do more than 10 hours driving during that shift :question: 10 is the absolute max but I’m not sure whether the ‘exempt’ runs count as driving time or working time - my GUESS would be that they are driving time as you came under tacho regs for that 24 hour period but I may be wrong.

4

An interesting question to which I found all your answers, however to be sure, I would rather let Neil Hobbs answer it in his easily understandable way. :wink:

My interpretation is that if you are waiting in a caravan for a job, your day starts when the mobile rings for your first job, you take the transit so you are on domestic rules, and would use the example on page 46 below to record your hours. Domestic hours are 10 hours driving in an 11 hour day, (you know the one that couriers stick rigidly to)

There is an exemption for
vehicles used in emergency and
rescue operations. However,
recovery movements are not
necessarily emergencies. Each
case must be judged on its
merits.

avrouk.com/page35.asp

onlinerecovery.co.uk/Feature … beware.pdf

roadtransport.com/staticpage … tm#Inscope

EU
Drivers Hours Regulation EC
561/2006

dft.gov.uk/pgr/freight/road/ … sgoods.pdf

pages 24 / 25 / 26 / 27 / 46 are the important ones in this case!

Record-keeping choices for digital tachographs
For domestic hours operations, there are a number of options in relation to the use of digital tachograph recording equipment. These are:

1 ignore the tachograph completely and keep records of domestic hours using a log book. This may be the preferred option for drivers, operations or vehicles that are entirely out-of-scope of EU rules.

#########################################################

2 use a log book to record domestic hours, but put the tachograph to out-of-scope. This may be the preferred option for those drivers, operations or vehicles that are mostly, but not entirely, out-of-scope of the EU rules. The out-of-scope flag on the tachograph recording will help to qualify periods where vehicles have been driven without a driver’s card (which is specifically recorded and reported by the digital equipment), where analysis for EU rules compliance has to be carried out occasionally for drivers using the vehicle.

The out-of-scope flag can be activated by using the digital tachograph’s menu - there is no need for a driver or company card to be in the tachograph to do this. This out-of-scope flag remains on the tachograph until either a driver card is inserted (or withdrawn) or someone changes it back using the menu. There is no specific legal requirement to record out of scope in this way, but it will indicate to analysts, managers and enforcement officers interrogating the equipment the periods of time for which the vehicle is being used on an out-of-scope activity.

##############################################

3 voluntarily use the digital tacho to record domestic drivers’ hours rules. This may be the preferred option for regular mixed driving drivers, operations or vehicles, or for those managers who wish to standardise record-keeping across a mixed fleet. If the operation falls into box B in the previous flowchart (ie domestic records are legally required), choosing to record domestic rules on a tachograph, rather than a logbook means that ALL legal requirements relating to the fitment and use of digital tachographs must be observed, including the production of records at the roadside for the current fixed week and previous 15 calendar days (to be changed to the current day and previous 28 days from 1 January 2008). When the driver takes over the vehicle, the driver should insert his card and use the tachograph to record his activities in accordance with the manufacturers’ instructions. At the beginning of periods where the driver is out of scope of the EU rules, the driver should put the out-of-scope flag on the recordings.

Mixed driving days and digital tachographs
If a driver is driving an out-of-scope vehicle during a day and then comes into scope of the EU rules whilst using the same vehicle (eg a 3.5t vehicle required to tow a trailer part-way into a day), the procedure should be as followed.

If you have chosen option 1 above, when the driver comes in-scope of the rules, he simply needs to insert his driver’s card. Using the prompts and menus he must enter details of his previous duty for that day - remembering that any driving under the domestic rules is classed as other work under the EU rules.

If you have chosen option 2 above, again when the driver comes in-scope of the rules, he simply needs to insert his driver’s card. Using the prompts and menus he must enter details of his previous duty - remembering that any driving under the domestic rules is classed as other work under the EU rules. The out-of-scope tag will automatically be removed when the driver enters his card.

If you have chosen option 3 above, the driver will already have his card in the equipment. He then must use the menu on the tachograph to remove the out-of-scope tag at the moment he becomes in-scope of the rules

5

But basically I havent a clue about this, there are a lot of grey areas or get out clauses in my opinion, such as what is an emergency? Would you have to take a 45 minute break to go and rescue a damaged cat in Brighton, even if the owner was up the tree with it :stuck_out_tongue:

6

Chas:
Briefly: It’s a recovery Co’ working inside & outside the 100km radius. Inside 100km & it’s tacho exempt, outside then tacho rules come into play. They seem to think that you can work for 10hrs+ inside 100km without a tacho then do a job which will take you outside the radius requiring a tacho.

They are telling their drivers that the tacho rules only come into play when the tacho is first used.

e.g. 1

Start 7.00am.
Job 1 @ 7.00am 10mls = exempt
Job 2 @ 11.00am 15mls = exempt
Job 3 @ 9.00pm 180mls = tacho

They claim that a driver will have 9 hrs of driving time from 9pm !

e.g 2

Start 7.00am.
Job 1 @ 7.00am 10mls = exempt
Job 2 @ 11.00am 15mls = exempt
Job 3 @ 9.00am the following day 180mls = tacho

Drivers are onsite, on call 24hrs a day for a 72hr period (caravans). Although there is more than 12hrs since the last job this cannot be classed as a rest period.

IMO they know they are asking their drivers to break the law, they also think they are immune should the driver be pulled as they believe it is 100% the drivers responsibility to ensure they are complying.

They MUST be aware that as no qualifying rest period can be taken whilst onsite & on call then any job requiring tacho after the first 9hrs of starting a 72hr shift is breaking the law.

In the first example, under domestic regulations you drive within a 50 KM radius of base and presumably do less than 4 hours driving, therefore you don’t need to keep records and daily duty time is exempt, although you don’t say how long the jobs lasted I’m guessing that you would have had adequate rest (domestic rules) between job 2 and job 3.

If that’s correct then I would say that for the EU regulations your day would begin at 21:00 and so you would indeed have 9 hours of driving from that time.

As you’re now in-scope of EU regulations you should have completed a daily rest or reduced daily rest by 21:00 the following day.

Any work including driving under domestic rules before the daily rest would count as other work.
However if you were to drive under domestic regulations outside of 50 KM or for more than 4 hours before the daily rest was taken, then the driving in-scope of EU rules would count towards the 10 hour maximum daily driving under domestic rules.

There’s no reason why you can’t have your rest in the caravan but there’s really no point in being on call as you wouldn’t legally be able to work even if a call came in, well not until you’ve had a daily rest anyway, and the fact of being on call would mean you were on duty and therefore not on a daily rest that complies with the EU regulations.

Example 2 is much the same, adequate rest (domestic rules) is taken between jobs 2 and 3 so I would say that for the EU regulations the day begins at job 3 (9 AM), and again you would need to have completed a daily rest or reduced daily rest by 09:00 the following day.

This is my take on the situation but I wait to be corrected :wink:

7

Sorry but I’ve had a re-think on this post and now see it differently :blush:

Page 24 For the domestic regulations a day is the 24-hour period beginning with the start of duty time.
Page 27 The rules also state that driving under EU rules counts towards the driving and duty limits under GB domestic rules.

In example 1 you started work at 07:00, so for domestic rules the day ends at 07:00 the following day, and the driving under EU rules count as driving for the domestic rules.

So if you start work at 07:00 and did 2 hours driving under domestic rules, then at 21:00 you drive under EU rules, you could only do a maximum of 8 hours driving under EU rules before 07:00 as this would bring your total driving time (domestic and EU) up-to 10 hours during the 24 hour period from the start of duty, the maximum allowed under domestic rules.

Also your work time would be limited to 11 hours in the same 24 hour period, this doesn’t include breaks or rest, I would think that it would be reasonable to consider the time spent on call as rest for domestic rules.

So I think that your boss is wrong to think that the driving time begins when you start driving in-scope of EU regulations, clearly this is when it starts for the EU regulations, but for the UK domestic rules driving time includes any driving done under domestic and EU regulations from 07:00 to 07:00 the following day.

I should say that this assumes that there’s no exemption from domestic regulations for you that I’m not aware of.

8

You’re having FUN with this one, aren’t you tachograph :question: :laughing:

9

ROG:
You’re having FUN with this one, aren’t you tachograph :question: :laughing:

I’ll tell you when my head stops hurting :wink: :smiley:

I’ll tell you this though, I’m glad I don’t do domestic and EU mixed driving in the same day :stuck_out_tongue: :laughing:

10

Don’t you have to stay on Tacho regs for the whole of the week if you come under them once at any time during that week?

I’ll tell you this though, I’m glad I don’t do domestic and EU mixed driving in the same day

Ditto that man.

11

Wiretwister:
Don’t you have to stay on Tacho regs for the whole of the week if you come under them once at any time during that week?

Well sort of but not exactly, you should record manually if necessary, any other work done in the week (00:00 Monday to 24:00 Sunday) that you do any work in-scope of EU regulations, and you should have the daily rest on the day you work in-scope of EU regulations, you should also have the required weekly rest in any week that you come in-scope of EU regulations, but you’re not necessarily having to comply with the driving and break part of the EU regulations, nor do you have to comply with the daily rest requirements on days that you’re no driving to EU rules.

12

Thanks for all the input & sorry for doing your heads in. It’s certainly got mine spinning.

All the problems stem from mixing domestic with EU rules by working both inside & outside the 100km zone.

I found the following info from a recovery website, makes it all a bit clearer :

FAX MESSAGE

VOSA
Vehicle & Operator Services Agency

Hamilton House Foster Road Parkestotii Harwich G0124QA
Tel: 01255603792 Fax: 01255 240586 Date: 4* June 2007
From: E F? Watson
To: Mf Rose
CdrnpSfiy:
FaxN&r 01787469577
No Pages:
Subject New EU Regulations

Dear Mr. Rose,
Following your recent request I should like to try to explain the main changes to driver’s hours legislation.
To recap, prior to 11h April all recovery vehicles were exempt from EU legislation on driver’s hours and tachograph rules. As such they were controlled by domestic rules which meant that although the hours rules had to be obeyed there was no requirement to keep any records if all work was carded out of scope of Operator Licensing laws, that is to say an Operator License was not required for any of the work carried out by the vehicle, i.e. vehicles were never transported for any reason other than to be recovered.
EU regulation 561/2006 changes certain rules. Now the exemption from EU rules only apply to recovery vehicles operating within 100kms from base (62 miles). If any recovery vehicle only ever operates within 100kms of base then the Operator and driver is governed exactly the same as he was Prior to 11th April- there is no change whatsoever.
However the following points must be bourn in mind if the vehicle becomes liable for EU
Legislation:
legi
EU rules will apply for the complete day on which any work outside the 1QQKms radius is undertaken. Bear in mind the day commences from the time the driver comes on duty immediately after his last rest period i.e 9 or 11 consecutive hours of rest (whichever applies). Consider the following three examples:
a driver works all day under domestic rules 0800 hrs to 1700hrs. at
230Ohrs he is called out on another local recovery, finishing at 02OOhrs
He reports for work at 0900hrs arid stands 'on call” until 11OOhrs. When
he is called to a long distance breakdown 65 miles away.
He cannot go - his last rest period finished 0800hrs on day 1 and he has not had 9 consecutive hours of rest since.
B) day 1
day 2

as above, except he Is not called out for the late duty so he finished at 17OOhrs
He reports at 0800hrs and works around the yard until 1400hrs. Then he goes home At 2000hrs he gets a call out request for a destination more than
lOOkms away. Which would entail him not getting home until O1OOhrs?
HE cannot go - his last rest period finished at O8OOhrs so he would need to finish work by 2100hrs or 2300hrs whichever is applicable.

84/06/2007 16:44 01255240586 VOSA PAGE 02/02
c) day 1 as above, finishing at 1700hrs.
day 2 He reports at O8OOhrs and works until 1300hrs and is then sent home because there is no work but he must remain on cail. At 20Qhrs he gets that same call out request.
He still cannot go for the same reasons. “On call” is driver availability not 'rest*.
Now consider a further alternative.
Day 1 as above, finishing at 1700 hrs .
Day 2 He reports at O800 hrs and works around then yard until 17OO hrs and then gets a call out for a long distance recovery. The driver will be back by 2300hrs so he can go on the job.
However, before inserting the tachograph chart into the machine he must make a manual record of what he has been doing since he came on duty, Ie. Use the graph on the reverse of the chart to show His day up to the present time, showing other work under the ‘crossed hammers’ sign, periods of stand by (availability) under the 'crossed box, sign and rest or breaks under the ‘bed’ sign.

Obviously I have not mentioned the working time directive rules yet but these also need to have been observed ie. a 30 minute break after no more than 6 hours of work.
Another very important thing to consider is also the question of the Weekly Rest, During any week when a driver works under EU rules then he must observe the weekly rest requirements even if he only drives 1 day that week under the rules. Before going out on the long distance recovery therefore the driver must have completed a 45 hour continuous rest period within the previous thirteen days, AND, have had a 24 hour rest period within the last six days. If he had 45 hours off within he last six days then that meets both requirements.
Finally, Because of this requirement it is a very good idea for the driver to always keep a record with him of what work he has been involved in during the previous three weeks just to be able to prove that he has had the necessary weekly rests.
If you have any other queries, and I am sure that I have not been able to cover everything here, then do not hesitate to ring me.

Ernie Watson
Traffic Examiner
Regards

13

EU rules will apply for the complete day on which any work outside the 1QQKms radius is undertaken. Bear in mind the day commences from the time the driver comes on duty immediately after his last rest period i.e 9 or 11 consecutive hours of rest (whichever applies).

“On call” is driver availability not 'rest*.

I Think those are the two main points

14

sod legallity if your too knackered dont do it

15

hitch:
sod legallity if your too knackered dont do it

Too right :exclamation: - fitness to drive MUST come first but you’ll be surprised how many drivers ignore this and put work comittments etc first…

16

http://www2.fta.co.uk/information/briefing-digest/public_briefings/070119_domestic_rules.htm

Changes to EU drivers’ hours recording rules from 11 April 2007 - other work
Under the changes to EU drivers’ hours rules, drivers are required to record all other work, including work for other employers for driving days and on non-driving days within a fixed week (00.00 Monday - 24.00 Sunday) where in-scope driving has been undertaken. For example, where a driver has worked in a non-driving capacity at a depot/site for two days in a week and he has also driven an in-scope vehicle, he must record this other work either written manually on a chart or printout, or by using the manual input facility on a digital tachograph. ‘Other work’ also includes driving an out-of-scope vehicle.