I know that a driver can choose to reduce his daily rest from 11 to 9 hours 3 times in a week and pay back before the end of the following week. But can the employer insist that the driver reduces his daily rest period against the drivers wishes?
I did not believe they could but the VOSA site leads me to think that there is nothing to stop them in law. Does anyone know the answer and the relevant regulations?
Thanks in anticipation.
From the VOSA web site.
It says
FAQ.26) Who is responsible for reducing my daily rest? Do I have a choice?
Your employer is responsible for scheduling his employees’ work and arranging when shifts must begin and end. It is for your employer to schedule your work so that rest periods are taken in accordance with the EC rules.
…
So it looks like, your boss can tell you to take a 9 hour rest period.
I had a look in my 2000 edition of Drivers Hours and Tachograph Rules, but that doesn’t say anything conclusive, one way or another.
I was always under the impression that it was up to the driver. I thought the rules said, “the driver may take a reduced rest…etc”, giving us the option rather than the boss.
Thats what has prompted the question Simon. The bosses at our place are quoting Cronas and saying the same thing. I’m trying to find out if there is any regulation that says difinitively that the choice to reduce the daily rest is the drivers alone. It could be a UK or EU regulation or more likely, IMHO,case law.
I’ve e-mailed VOSA directly and await a reply, my union full time officer is contacting thier experts for an opinion. Thanks for the response though.
Are your management aware of their responsibilities from the Health & Safety Executive in the document entitled Driving at Work?
The only case law that I can recollect is a very old one concerning a motorist continuing to drive when he knew, or should have known, that he was unfit to do so. I can’t remember whether it centred around illness or tiredness. You would need to research Rackless/Careless driving to find out.
It could be argued that an employer, having been reasonably told by an employee that he feels that he has had insufficient rest to continue driving in a safe manner, but insists that driving is resumed, could be guilty of Procuring the offence. You may find this LINK useful to explain the position better.
Am I right in thinking that the granting of an Operator’s Licence includes an obligation to ensure that vehicles are operated legally at all times? When all factors are considered in relation to the ‘fitness’ of the employee to drive and the obligations imposed by the H&S Exec, then it could be argued that the employer, by insisting that the journey is continued against the advice of the employee, is in breach of the terms under which the Licence was issued.
I presume the situation is that your employer wants you to take the permitted number of 9 hours breaks but you (or others) do not.
Whilst I’m sure you have your own list of reasons for not availing yourself of ‘Reduced Rest’, the obvious reasons that come to mind are:-
The travelling time between the place where the vehicle is kept and home, and the traffic volumes encountered when travelling at specific times.
The amount of physical activity involved in loading/unloading, additional to driving.
The degree of stress experienced during the preceding day due to traffic congestion. The degree of stress envisaged during the current day due to start time relative to traffic congestion and/or weather conditions.
The age of the individual.
Or if ‘Overnighting’ in the vehicle,
The suitability of the vehicle, and the mattress fitted in the vehicle, for multiple nights out.
The ability to reach locations providing adequate toilet and refreshment facilities which can be accessed without undue delay.
I’ve been promised and old copy of Blackstones, so that may contain something relevant.
This is a subject close to my heart and there doesn’t seem to be a definite answer…
trucknetuk.com/phpBB2/viewtopic.php?t=10175
So come on, what is the score on this ■■
I don’t think there is a ‘definitive’ answer, each situation having to considered on its merits, however,
Health and Safety at Work etc Act 1974
General duties of employers to their employees.
2. (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
(2) Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular
· (A) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
· (B) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
· (C) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
· (D) so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
· (E) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.General duties of employees at work.
7. It shall be the duty of every employee while at work
· (A) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and
· (B) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
is also of relevance.
What you need to do is to take the Road Traffic law, the Health & Safety legislation, together with the guidance from the HSE, and the obligations under the Transport Act (assuming I got that right) and put together justification to support your argument.
And if he still says No. Initiate a grievance procedure which will then permit him 28 days to reply in writing reasons for for rejecting your submissions.
Whereupon, you forward the whole lot to the HSE for any comments that they may wish to make concerning the matter. 
Thanks for all the pointers folks. My own research has thus far only produced contradictions which do nothing one way or the other. The reply from VOSA was a request to call them by telephone 
so why have an e-mail enquiry service? The cynic in me thinks it may be to prevent anyone holding it as a reference for later accountability.
Thanks also to Krankee for his pointers about a grievance procedure, I’m a bit of a stickler for these procedures, and have little faith in my own management teams willingness to accept these procedures as a method of resolution and more a procedure for provarication. An ongoing case in point, I lodged a grievance against 2 managers for a H & S failure, repeated after at least 2 injury accidents, and the investigating manager assigned was…one of the managers against whome the grievance was lodged. You have to see the arrogance of these people to believe it. They genuinely seem to feel hard done by because we would want to follow a procedure that the company implement and not just roll over and take any [zb] they feel inclined to dish out.
Sorry went off on one. 
The perverse part in this whole sorry episode is that in the past 3 weeks the number of people who have had nights out has declined when compared with the previous month. They are trying to make drivers who have never worked more than 13 do so,and justify this by saying the trailers are required back for reloading. I have some other meeting notes that will be used come the next review but integrity, honesty and consistency are not high on the list of managerial qualities displayed at our place. Whoops going off on another one.
Of course a company can ask you to take a reduced rest, there is no legal reason they can’y but ultimately onlt the driver knows if they are fit to drive or not. After all we are allowed to drive for 4.5 hours, and work for more than that, before a break is required but we often stop long before that because we feel we need a break.
Those scheduling transport operations are obliged to do so so the work can be done without contravening the Tacho regulations and scheduling it so that a reduced rest would be needed instead of the full rest doesn’t contravene them, in which they would be in their right to ask you to do a reduced rest.
Whether they could sack a driver for refusing is a different thing as the driver would have a good case for saying they felt unfit to drive through tiredness or whatever and the case going to tribunal could lead to adverse publicity for the company, along the lines of them forcing drivers to drive while tired.
So yes they can ask you but they can’t force you in my opinion.
And that is pretty much the view of the VOSA inspector I spoke to (Bristol office). The company can, if that is part of your contract of employment, ask you to work up to the legal maximum. The crux of the matter is the driver is ultimately responsible for the vehicle and if a driver were to report to his transport office that he was unfit to drive, and the office were to then insist the driver continue, the driver could complain to the VOSA and thier view would not likely be favourable towards the company. If there were to be an accident then the stakes go even higher. 
You mean an enforcement officer and me were in agreement. Now you are scaring me. Stop it, it’s not funny. 
Where i work everything is worked out over a 13hr day, but on the odd occasion we will get asked to do a 15 although there are times this isn’t possible i.e driven 10 hours etc.
In the last 6 weeks i have done 2 15hr days and 1 of 16 