Drivers' Hours - what to do when stuck in a Jam
Ask any driver - professional or otherwise - to name the things that are least enjoyable about being behind the wheel and there is a more than even chance that "being stuck in a traffic jam" will feature highly on the list of responses. The range of problems associated with being stuck in traffic is varied: a relatively minor delay may still cause frustration and embarrassment as appointments are missed, while a lengthy wait has the potential to cause genuine commercial disaster.
The Legal Problem
For operators of commercial vehicles, there is a further problem which can arise from a traffic jam, and one that has potentially serious legal consequences (for both the operator and the driver) if not properly dealt with: the risk of straying outside the parameters of the drivers' hours rules.
Whenever a PSV or HGV is driven, the operator and driver are, with limited exceptions, subject to one or other of the sets of drivers hours rules which govern how long the driver can drive before taking a break or rest. If not EU drivers' hours rules then domestic rules will usually apply, and each must be adhered to, often in tandem with the relevant working time regulations.
Compliance with the EU rules should be managed by a combination of proper scheduling by operators and sensible planning by drivers. However, unexpected things happen. When stuck in traffic, the meticulously planned schedule can go out of the window and it is often the case that a driver will still be queing when the times comes to take a break.
Assessing the Situation
What, then, can drivers do to ensure that when 3 lanes of the M25 come to a standstill 10 miles from the next junction or service station, they stay on the right side of the law?
First, an ability to assess the situation is helpful. Of course, it can often be impossible for drivers to tell how long they are going to be stuck in traffic, but even a limited insight as to the likely length of a delay may inform the course of action which should be taken; crawling along in slow moving traffic on a motorway due to an accident is an entirely different matter to being halted completely for several hours, perhaps overnight, because of heavy snowfall or, as has been the case in recent months, queuing in Kent to board a ferry.
In the first scenario described above, there may be nothing that can be done to avoid exceeding the driving or duty time. As long as the vehicle is (or is likely to be) required to move and the engine remains running, then no break from driving can be taken.
Article 12 of Regulation (EC) 561/2006 explains the circumstances in which it is permissible to depart from its provisions on breaks and rest, and the requirement is clear: as long as road safety is not jeopardised - and only to allow a driver to reach a suitable stopping place to ensure the safety of persons, the vehicle or its load - drivers may depart from the usual provisions of the rules and exceed their driving or duty time.
There is then a legal requirement to ensure that the records explain exactly why and failure has occurred, and this is done by making a manual entry on an analogue chart or digital printout. The entry must indicate the reason for the departure from the rules and must be made as soon as the suitable stopping place is reached.
Long-term Stationary Queues - Engines Off!
A different response is called for when the driver is forced to remain completely stationary ina queue of traffic for several hours. The key feature of queues of this nature is that driving ceases.
Where drivers are sure that they are not going anywhere soon, the next question is whether or not they can record a break. Drivers are, of course, perfectly entitled to take their breaks in their vehicles, but for a break to be taken, drivers must be certain that they are free to dispose of their time. If there is any prospect of being required to move the vehicle, or to do anything which could be construed as other work, then during that time drivers cannot record a break. For the avoidance of doubt, drivers are reminded that the definition of "other work" (Directive 2002/15/EC) is broad and is intended to cover just about any task (other than driving) which relates in any way to the transport operation. For example, PSV drivers carrying passengers may find it particularly difficult to avoid being required to undertake other work given the likelihood of questions from passengers etc.
Very rarely, (and probably only in organised queues such as when Operation Stack is in place) it may be possible for a driver to take a daily rest while in a stationary queue, but, as above, the rest has to be uninterrupted and there is a requirement that the vehicle has suitable sleeping arrangements. If these are not available then drivers would need to find accommodation elsewhere to take the daily rest and be sure that there would be no requirement to return to the vehicle and/or to work during the rest period. In reality the chances of being in a queue with no prospect of interruption or other obligation to work for eleven (or even a reduced 9) hours are slim.
In fact the most likely mode to be applicable in this scenario is "period of availability". The definition of a period of availability (2002/15/EC) confirms that it applies where a driver is not required to remain in or by the vehicle but must be available to answer calls or to resume driving or other work if and when needed. Crucially, the driver needs to know the likely foreseeable duration of the period of availability in advance.
Of course, the use of the correct mode when not driving will not avoid situations in which total duty time (in EU terms) or working time rules are compromised - and once again, in these circumstances, the manual entry provision applies.
Drivers would be well advised to keep a manual record of missed, or delayed WTD breaks in the same way as for missed or delayed EU driving breaks.
No matter what the cause of the delay is, action will need to be taken by a driver when the delay creates a risk of infringing on drivers' hours rules. Drivers should assess the situation and do their best to assess the nature and cause of the queue and the likely length of the hold up. For slow moving queues where driving continues, there may be little a driver can do to avoid exceeding driving hours. For long-term stationary queues, when the engine is off, a driver may record a break if he is certain that he is free to dispose of his time - but otherwise should record either "other work" or a period of availability as the case may be.
Finally - and most vitally - wherever the relevant drivers' hours rules are compromised, a driver must make a manual entry to explain the circumstances. Operators and drivers should remember that a drivers' hours infringement, if not explained by way of a manual entry, could be the basis for a criminal prosecution.
First published by Croner Publishers on Croner-i Road Haulage. Copyright 2015 Wolters Kluwer (UK) Ltd
Author: Richard Pelly