The Working Time Regulations 1998 (SI 1998/1833) (‘WTR’) govern working time for workers in the UK. However, the working time of certain Mobile Road Transport workers is governed by EU legislation and these rules are implemented in the UK by the Road Transport (Working Time) Regulations 2005 (RTR). The RTR governs the activities of drivers of goods vehicles where the maximum permissible weight exceeds 3.5 tonnes or drivers of passenger vehicles suitable for carrying more than nine people (including the driver). 

However, there are two provisions in the WTR which do apply to Mobile Road Transport workers and this article outlines your obligations under this legislation.

What you have to do under the WTR with regard to holiday pay?

There have been some recent updates on the law in this area. Following on from the guidance that we published in our previous issue of Deliver on 23 November 2017 entitled ‘Working overtime in the transport sector’, the Court of Appeal has now made a decision in East of England Ambulance Services NHS Trust v Neil Flowers and others 2019 which clarifies that voluntary overtime is capable of forming part of normal remuneration for the purposes of calculating holiday pay for drivers.

Top tips for calculating holiday pay – always include: 

• All contractual pay which is ordinarily received
• Result-based commission which is regularly received 
• Payments which are intrinsically linked to an individual’s performance (such as productivity bonuses)
• Voluntary and non-guaranteed overtime which is regular and settled.

Please note that the requirement to include these payments in holiday pay only apply to the first four weeks of holiday.

Do not include payments to cover ancillary costs incurred by the worker, such as expenses.

Points to note:

• A week’s pay should be calculated using gross figures (Secretary of State for Employment v John Woodrow & Sons (Builders) (1983) 
• From April 2020, the reference period for calculating an average week’s pay will increase from 12 weeks to 52 weeks. As you are reviewing your holiday pay calculations you may wish to make this change now (Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018). 

What you have to do under the WTR with regard to health checks?

All employers must offer a free health assessment to any worker who is, or is intended to become, a night worker (regulation 7). The obligation here is on the employer to offer the health check: the worker is not required to accept this offer.

Top tips for health assessments: 

• You must ensure that you offer workers a health assessment before they commence night work
• You must ensure that your night time workers are offered health checks at regular intervals and schedule your workers in for this on an annual basis
• You should ensure that the assessment is written by a qualified health professional
• If the initial assessments suggest that the individual may not be fit for night work, they should be referred to a qualified health professional for further assessment
• If the health professional advises that the worker is suffering from health problems connected with night work, the night worker is entitled to be transferred, wherever possible, to suitable work during the day
• You must keep confidential records of the health assessments (which should be kept for two years) and the dates when assessments were offered (if a worker didn’t want one).

The content of this article is from the summer 2019 edition of Deliver and is for general information only. For further information regarding drivers’ working time, please contact Sonya O’Reilly. Law covered as at July 2019.