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Drivers’ working hours
[ch 9: pages 160-162]Two sets of working time regulations and two sets of parallel regulations control working time on the roads. The Road Transport (Working Time) Regulations 2005 affect mobile workers (mainly drivers, crew and other travelling staff) who are travelling in vehicles subject to the EU Drivers’ Hours rules. These limit weekly working time (excluding breaks and periods of availability) and the amount of work that can be done at night. They also specify how much continuous work can be done before taking a break, and set down daily and weekly rest limits for the crew and travelling staff. Under these rules, working time for mobile workers must not exceed:
• an average 48-hour week (normally calculated over a four-month reference period);
• 60 hours in any single week; or
• 10 hours in any 24-hour period, if working at night.
A reference period for the average 48-hour week may be extended from four to six months and the amount of night work can exceed 10 hours if a collective or workforce agreement is in place.
Alternatively, mobile workers may be covered by the WTR plus the domestic Drivers’ Hours rules. Self-employed drivers are covered by the Road Transport (Working Time) Regulations 2005.
The rules on drivers’ hours and tachograph use in the UK are very complex. Detailed guidance is available at: www.gov.uk/drivers-hours/overview.
Unions win legal victories against self-employment
Uber operates a car hire platform that connects passengers to thousands of drivers through an app on the passenger’s smartphone. Using the app, passengers can request they are picked up from any location within London (or 300 other cities worldwide). Passengers pay Uber for the journey, which then passes on a percentage of that payment to the driver.
With the support of their union, Uber driver general GMB union members won an employment tribunal case establishing that they should be treated as workers with rights to holiday pay (as well as the minimum wage and other benefits).
A key aspect of the ruling was the tribunal’s decision that the drivers were working not only when they were carrying a passenger, but also when the Uber app was switched on, the driver was in the territory where he or she was licensed to use the app and the driver was ready and willing to accept trips. To provide the promised “excellent rider experience”, said the tribunal, Uber needed to have some drivers carrying passengers and others waiting for the chance to do so. “Being available [was] an essential part of the services”. This aspect of the ruling has important implications for all mobile workers who are falsely self-employed in the gig economy (see box on pages 13-14).
Uber continues to argue that its drivers are self-employed and has been granted the right to appeal the October 2016 ruling. The case is due to be heard in the employment appeal tribunal (EAT) in September 2017. The union is confident that the EAT will uphold the original judgement that the drivers have worker status.
The Independent Workers Union of Great Britain (IWUGB) has also won legal victories against bogus self-employment on behalf of bicycle couriers working for Excel Group Services Ltd and CitySprint.