Is the system against the op aded rator?
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It is now almost 10 years since an EU Regulation brought into force the Driver's Hours Rules on tachographs and driver's hours. Throughout that period there has been uncertainty on the precise interpretation of the various Articles.
We have recently had a judgement from the European Court on the interpretation of Article 7 dealing with breaks and driving periods ("the four hour rules").
We have also had a judgement of the European Court laying down how we should calculate and interpret Article 8 relating to daily rests, and in particular what is meant by the words "any 24-hour period". Once again expectations have not been met. Everyone wanted a definitive judgement, ending any chance of misinterpretation or controversy as to how the wording of the Regulations should be Followed by drivers and operators.
It seems that following the four-hour judgement there are still areas of confusion which UK courts are trying to wrestle with. Similarly, the latestjudgement on the meaning of "anyperiod of 24 hours" has failed to supply a definitive interpretation. On 2 June the European Court did rule on the meaning of the terms "24-hour period" and "day" The court ruled: "In each period of 24 hours the driver shall have a deify rest period of at least 11 hours, which may be reduced to a minimum of nine consecutive hours, not more than three times in any one week, on condition that an equivalent period of rest be granted as compensation before the end of the following week. On days when the rest is not reduced in accordance with the first subparagraph, it may be taken in Iwo or three separate periods during the 24-hour period, one of which must be at least eight consecutive hours. In this case the minimum length of rest shall be increased to 12 hours." This judgement relates to Article 8(11. It is bound to have a knock-on effect on the interpretation of double-manning and weekly rests.
Dealing with the effect of the judg,ement on Article 8 (1), it is clear that prior to The judgement there were numerous interpretations of the phrase "any 24 hours".
One argument put forward was that once a chart had been inserted at the start of the day, that started the 24-hour period during which the daily rest should be taken. It was also arguse-d that the words "24 hour period" related to successive 24-hour periods starting when the driver begins his weekly driving. For example, if a driver started work at 09:00hrs on a Monday morning, the daily rest related to the following 24 hours.
A third interpretation, and one favoured by the prosecution, was known as the "rolling 24hour period". This enabled the prosecution to pick any 24-hour period, starting at any time, and working backwards or forwards by 24 hours, with no reference to the time the driver started work.
The European Court judgement favours the first interpretation. It took into account that the Regulations were intended to ensure road safety and to improve working conditions for drivers.
With that in mind, the court took the view that the legislation intended to prevent drivers from remaining at the wheels of their vehicles for periods of such length as to cause tiredness and jeopardise road safety. It discounted the fixed start approach (taking the same time every day as a starting point) because that could result in drivers remaining at the wheel for excessive periods. It took the view that the "24-hour period" was variable; in effect running at the time of starting driving, after the end of the previous day or weekly rest. The judgement was: "Each period of 24 hours in Article 8 (1) must be interpreted as meaning any period of 24 hours commencing at the time when the driver activates the tachograph following a weekly or daily rest period. Where the daily rest is taken in two or three separate periods the calculation must commence at the end of the period of not less than eight hours." There does seem to be remaining doubt on the interpretation given by the European Court when dealing with the continuous rest periods of either nine or 11 hours. If the driver takes a nine-hour break, he starts the next "24-hour period" immediately after he finishes his rest break, when he activates the tachograph to start driving. What about the driver who, for example, starts work at 07:00hrs following his daily rest period but doesn't actually start driving until 11:00h rs?. He spends three hours working, so does the "24-hour period" start at 07:00hrs or 11:00hrs? in its judgement the court consistently refers to the driver "activating the tachograph". To give the judgement any meaning that phrase must mean when the driver commences any activity which should be recorded on the tachograph.
It has been long established that a driver who performs non-driving duties at the start of the working day must complete the reverse of the tachograph chart manually before inserting it into the tachograph head. The most surprising aspect of the judgement is the court's interpretation of the eight-hour split breaks. The Regulations have always provided that a daily rest period can be taken in up to three separate periods of rest during the "24-hour period". Those rests must not be less than one hour and at least one of them must be eight hours or more.
The judgement of the court ends "where a daily rest is taken in Iwo or three separate periods the calculation must commence at the end of the period of not less than eight hours." Consider two working days of a driver starting work of 00:00hrs on Monday (see chart, below left).
Examination of those two days' work highlights the true meaning of the court judgement, and shows why it is clearly correct and in the interest of road safety. The first "24-hour period" starts at 00:00hrs on the first day. By definition that "24-hour period" ends at 00:00hrs on the second day. During that period the driver has complied with the Regulations by having a split rest period in three breaks of eight hours, two hours and two hours.
However, applying the court judgement that a period starts at the end of an eight-hour rest, a second "24-hour period" starts at 13:00hrs on the first day and ends at 13:00hrs on the second day. It can be seen from the chart that during this period of 24 hours the driver has had only fours hours' rest and has worked for 20 hours.
In effect, what the European Court interpretation was anticipated by the Commission when the original Regulations were drafted. This seems wholly inconsistent with the opposite view taken by the courts in interpreting the four-hour rule lsee Legal Bulletin, March 1994).To sum up, drivers and operators must take considerable care whenever they are taking split doily rest periods. In the example the offence was clearly committed and the driver must calculate his 24-hour duty period from two separate starting points.