Law Enforcement & Penalties
The working time regulations for mobile workers will be enforced in Great Britain by DVSA (Driver Vehicle Standards Agency), and in Northern Ireland by DVTA (Driver and Vehicle Testing Agency), this enforcement will mainly be as a result of complaints. However, although DVSA’s approach will be one of education rather than prosecution, it will have the power to request an employer's records if there is evidence that the employer is not complying.
The request of any operators WTD records by an enforcement officer on a visit to an operators premises - asides from the result of a complaint - could equally be as a result of:
- A poor Operator Compliance Risk Score (OCRS)
- During a regular licence check of an operators fleet
- As a result of a vehicle being stopped at a roadside check with the vehicle being found wanting
- An infringement of licensing
- Breach of European drivers hours rules
- Where a vehicle has been involved in an RTA (Road Traffic Accident)
- Where a serious incident has occurred, such as an incident which could involve a breach of Health & Safety
We are aware, that the response from the enforcement authority will initially be with the onus on educating employers and workers rather than prosecution. However, if an enforcement officer suspects that little or no effort has been made to implement the regulations, the enforcement authorities have the powers to impose improvement notices or prohibitions on the operator as detailed below.
If DVSA inspectors find that an employer is failing to comply, they can issue an improvement notice requiring any contravention to be corrected within a given time, to which the employer can appeal. However, the penalties for failing to comply with the terms of the notice, failing to provide the information requested or for obstructing an inspector during the course of any investigation will be judged by the seriousness of the offence committed.
Once an improvement notice has been issued notifying the employer of a likely breach of the Regulations, the enforcement officer will set out the changes that need to be made in a given timescale. Upon the expiry date of the notice, a follow-up visit will be made whereupon the changes required of the employer will need to be seen to be in place, failure to have done so will result in an escalation of the notice.
Where an enforcement officer attends an employer’s premises and finds that the employer’s practices are likely to cause the risk of personal injury, or there is a complete failure to implement the directive, an inspector can issue a prohibition. In the case of a prohibition notice, the requirement here will be to stop a dangerous activity with immediate effect; and where non-compliance of the regulations are concerned, to immediately start complying with them. Failure to adhere to the requirements of the prohibition notice will result in prosecution.
Fines & Custodial Sentences
Any employer failing to comply with any of the relevant requirements of the Regulations - especially persistent offenders - the risk of prosecution is a real one, to which the courts have a system of fines and custodial sentences that can be applied to anyone who does so.
Examples of the penalties that can be expected are detailed below:
- Failure to comply with the regulations could lead to a fine of up to £5,000 (the current maximum) in a Magistrates Court, or a fine at the Judge's discretion in a Crown Court
- Contravention of an improvement or prohibition notice served under the Regulations could lead to imprisonment for up to three months or a fine of up to £5,000 (the current maximum) in a Magistrates Court; or imprisonment for up to two years and/or a fine at the Judge's discretion in a Crown Court
If any worker(s) are being forced to break the Regulations, they have the right to:
- Talk to their manager, in an effort to resolve the matter immediately
- Contact a trade union (if they have one), who will be able to advise them what to do
- Take the matter to DVSA, which will inevitably result in attendance at your premises by enforcement officers
Although in principle, there are merits to certain aspects of the WTD, there is much that could have been thought through, especially in light of the changes to the EU Hours Rules that followed (EC561/2006).
Unfortunately, this legislation is in place, like it or not, and all operators are required to comply. The penalties for non-compliance should be enough of a deterrent for all operators to take the regulations seriously.