Can you take your 45-hour weekly rest break in your cab?
The issue of cab breaks has become fraught with controversy following a recent European Court of Justice (ECJ) finding that drivers’ long rest periods should not be taken in their cabs.
Some EU countries are strongly enforcing this interpretation of the rules and imposing heavy fines. Others, including the UK, are not enforcing the weekend cab break ban, although that is set to change.
Hauliers have mixed feelings about the interpretation. Some operators are concerned at the additional costs of providing driver accommodation on long-haul journeys, while others welcome it as a way to curb the rising number of foreign drivers working extended periods in the UK and undercutting the domestic market.
So what are the rules, how will they be enforced and what do hauliers need to do to meet the regulations, both at home and abroad?
Article 8(6) and 8(8) of EU Regulation 561/2006, introduced in 2007, provides that:
- in any two consecutive weeks, a driver shall take at least two regular weekly rest periods or one regular weekly rest period and one reduced weekly rest period of at least 24 hours;
- however, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question. A weekly rest period shall start no later than the end of six 24-hour periods from the end of the previous weekly rest period;
- where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, if it has suitable sleeping facilities for each driver and the vehicle is stationary.
The ECJ clarified the rules in February following a dispute between a Belgian haulier and the Belgium authorities. The dispute centred around the way Belgian law interprets these rules to mean that a regular weekly rest period cannot be taken inside a vehicle.
The ECJ advocate general Evgeni Tanchev proposed that Articles 8(6) and 8(8) are to be interpreted as meaning drivers can take their daily rest periods and reduced weekly rest periods in their vehicles, but not their longer regular weekly rest breaks.
He said if the EU legislation intended to cover regular weekly rest periods, as well as reduced weekly rest periods, in Article 8(8), it would have used the term ‘weekly rest period’ to encapsulate both.
Although this is a legal opinion and not a ruling, the ECJ is expected to follow.
EU Mobility Package proposals
The advocate general’s opinion was given unequivocal backing in May this year in the EU Mobility Package proposals on road transport. It proposed that the regulations on drivers’ hours be amended to remove any ambiguity by adding the following:
- regular weekly rest, and any rest period of more than 45 hours, is not to be taken in the vehicle but in suitable accommodation, with adequate sleeping and sanitary facilities;
- suitable accommodation must be provided or paid for by the employer, or taken at home or another private location chosen by the driver;
- at least one weekly rest or compensation rest in four weeks must be taken at home.
How will the ruling be enforced in the UK?
In Belgium and France, hauliers contravening these rules already face stiff penalties of more than €1,800 (£1,637), but the UK appears to be planning something more lenient.
In response to a written parliamentary question in March, former transport secretary Lord Ahmad said: “The EU drivers’ hours regulations allow HGV drivers to take a daily rest or a reduced weekly rest in their vehicle, provided the vehicle is stationary and is fitted with suitable sleeping facilities.
“However, the regulations do not allow a regular weekly rest period of 45 hours to be taken in the vehicle. Subject to stakeholder views, the DVSA will be enforcing this through a £300 fixed penalty notice/financial penalty deposit.”
In the same month, the DVSA stated for the first time – in its simplified guidance on drivers’ hours – that drivers “cannot take a regular weekly rest period” in their vehicles. But five months on it has yet to start imposing fines.
A spokeswoman told CM: “The DfT has consulted with the industry on plans for the DVSA to start enforcing EU rules, via a fixed penalty of £300, for drivers who regularly take their weekly break in their vehicles. The outcome of this will be announced in due course.”
Tim Ridyard, road transport lawyer at Ashtons Legal, said: “There has been an influx of foreign drivers working for UK businesses in the UK. It is not unusual for a foreign driver to spend weeks in the UK, away from their homes in other EU states, sleeping at weekends in their cabs – often at an operating centre – before departing the UK for an extended rest period.”
Ridyard said one of the purposes of the EU Mobility’s proposals on cab breaks “is to tackle the problem of non-domestic drivers away from base for prolonged periods”. He added: “It touches on questions of fair competition, driver welfare and local wages.”
Ridyard also questioned the DVSA’s ability to enforce the rules. “It intends to introduce more formal action in the future. However, there will be a practical issue – how can the location of where the driver rested be proven from the drivers’ hours records alone?”
Rothera Sharp road transport solicitor Laura Newton said driver welfare was important. “Of course, no one wants drivers having insufficient rest by sleeping on a cab seat and parking in inappropriate places to save money for their employer.
But the legislation does not acknowledge that in many modern vehicles, the facilities would be as sufficient as any hotel, and perhaps more comfortable for the driver. There is not an abundance of hotel facilities with truck parking, let alone protected truck parking.”
James Firth, head of licensing policy and compliance information at the FTA, said it is lobbying for a derogation of the rules for entertainment industry operators, which have invested heavily in vehicles with state-of-the-art sleeping accommodation.
Firth said: “We’re pursuing an exemption for these operators, but in terms of the law itself, what is its aim? It’s done under the
RHA deputy policy director Duncan Buchanan said the DVSA needed to “get on” with enforcing the regulations. “However we want drivers to be able to take those breaks in their vehicles in a recognised parking area with full facilities so they can take a proper rest, rather than in hotels.
This is a national problem, particularly around ports, and it isn’t helped by the severe lack of recognised parking places in the UK.”
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Truck driver sent to prison for smuggling 7.9m cigarettes
A truck driver who tried to smuggle 7.9m cigarettes into the UK in what he had claimed was a load consisting of paper towels and tissues, has received a two and a half year prison sentence.
Artur Staniszczak was arrested by Border Force officers at Dover Eastern Docks on 17 July after a search of his truck revealed the cigarettes.
Import documents, which were found to be fake, showed that the load contained 33 pallets of paper goods.
The driver, who is from Poland, pleaded guilty to evading excise duty at Maidstone Crown Court on 15 July. He must serve 15 months of his two and a half year sentence in custody.
Tim Clarke, assistant director, Fraud Investigation Service at HMRC, said: “This lorry contained nothing but boxes of smuggled cigarettes. Staniszczak hoped that false import documents would prevent the illegal load being discovered, but he’s now paying the price with a prison sentence."