At one time or another, many transport companies need to rely on the services provided by agency drivers, to best cope with sudden fluctuations in demand or to fill driver shortages.  This allows for the undisrupted continuation of services by these organisations.

However, there are important laws and regulations that operators must abide by when relying on the services provided by agency drivers.

Agency Drivers and The Law

In the recent case of Enero Logistics Ltd the Senior Traffic Commissioner took action against an operator who was using so called agency HGV drivers.  This is an important decision for any transport operation to be aware of as it reiterates the importance of operators complying with their legal obligations in relation to those who work for them.

The Agency Workers Directive 2010 aims to ensure the protection of temporary agency workers and ensures equal treatment of agency workers.

These regulations provide that after a qualifying period of 12 weeks, the basic working and employment conditions of temporary agency workers must at least be as beneficial as those that would apply if they had been recruited directly.

What Were Enero Logistics Ltd Doing?

Enero Logistics Ltd (Enero) was called to a Public Inquiry following a bridge strike.  At the inquiry it was necessary to investigate how Enero employed and controlled its drivers.  The press release issued by the Office of the Traffic Commissioner about the Enero case included the following warning:

"In his decision, the Traffic Commissioner noted that some operators still wrongly believe that anti-avoidance legislation does not apply and that HMRC cannot pursue workers, agents and the operator.  Failure to comply with legal requirements can undermine the ability to hold an operator's licence.  The publicly available guidance on the GOV.UK website advises that a person is an agency worker if they have a contract with an agency but work temporarily for a hirer.  Even workers doing occasional work for a specific business (where the worker has to agree to terms & conditions to obtain the work, where the business provides the materials, tools or equipment) can be subject to the deduction of tax and National Insurance contributions from their wages.  Legitimate agency arrangements are subject to specific legislation requiring the agency to supply the worker with information including the start date and how long the assignment is likely to be for.  Agency arrangements will be scrutinised by Traffic Commissioners."

In this case the agency agreement was found to be a "sham".

What You Need to do as an Operator

If you currently have agency drivers within your organisation, it is crucial that you check what arrangements you currently have in place and ensure that your organisation is compliant.

Alternatively, if you do not currently have agency drivers working within your organisation, it makes sense to ensure that you are clear on what you are legally required to do, in case you ever do need to rely on the services of an agency driver in the future.

If you have any questions regarding agency drivers or more generally about your company as an operator, then please click here to send us an email, or call us directly on 01279 818280.  We are here to help.