RTD152

Background
The Claimant was employed by the Respondent as a lorry driver from 4^thSeptember 2005. The Claimant continues to be employed by the Respondent although in a different capacity.

Three points were taken by the Claimant, as follows: -

• 
  1. The Respondent contravened Regulation 8 in not affording him adequate breaks,

  2. The Respondent contravened Regulation 11 in not informing him of the provisions of the Regulations,

  3. The Respondent contravened Regulation 12 in not providing him with details of his working hours, having been requested to provide that information.

• €1.500 in respect of the contravention of Regulation 8

  €1,000 in respect of the contravention of Regulation 11

  €800 in respect of the contravention of Regulation 12

The Facts
The Court heard evidence from the Claimant, Mr Brian Lawson, who is logistics manager with the Respondent and from Mr Ian MacWilliam, who is a director of the Respondent. The facts, as proved in evidence, or as admitted by the parties, are as follows:

At all material times the Claimant was employed by the Respondent as a truck driver. He called to the Respondent premises each day and collected the deliveries that he was required to make in the course of the day. His starting times varied but he told the Court in evidence that, on average, he would start at or around 7.30 am. He made his deliveries and returned to the Respondent’s premises when his work was completed. His starting and finishing times were determined by the work to which he was assigned.

Before leaving the Respondent’s premises the Claimant normally spent some time loading his truck. This, on average, took up between 15 and 30 minutes. His truck was fitted with a tachograph which he was expected to operate. The tachograph had a facility to record period during which he was not driving, such as when he took a break and this required a manual input involving pressing a button on the machine.

Breaks
It was the Claimant’s evidence that the Respondent told him that he could not drive for more than 4.5 hours without a break. He told the Court that he always took a break at such intervals. He said in evidence that if he started working, for example, at 7.30am he would take his break at between 12.30 pm and 1.00 pm.

It was accepted that following an inspection by inspectors of the Road Safety Authority, in or about September 2013, it was found that the Claimant had not properly recorded his breaks on the tachograph. A notice dated 15^thOctober 2013, recording a breach of the Regulations, was served on the Respondent. It appears that the Claimant told the inspector that he in fact took his breaks but that he had neglected to record the period in question on the tachograph. The Respondent wrote to the Claimant by letter dated 15^thOctober 2013 concerning his obligation to comply with the Regulations.

The Respondent then issued a notice to all drivers, including the Claimant, also dated 15^thOctober. That notice was in the following terms: -

• Following an inspection by the Road Safety Authority one of our drivers was accused of not taking rest breaks, or not using the right selection button on the Tachograph. The driver confirmed that he was getting his breaks, but forgot to use the button. It is not good enough, and disciplinary action will be taken if you do not take your breaks or fail to set to [sic] the button on the Tachograph.

  Please take your rest breaks which are 45 minutes after 4.5 working hours. Move the Tachograph to the correct mode on the system. If you have any questions on this please contact me directly. Pulling over to go to the toilet or waiting to deliver glassis notclassified as rest time.

  So stop when it’s safe, pull over and go to a café or take a sleep I don’t care, but stop.

  Ian MacWilliam

Provision of Information in Relation to the Regulations
In his evidence to the Court the Claimant stated that he was never made aware of the provisions of the Regulations. The Claimant’s evidence on that point was confirmed by Mr MacWilliam in his evidence to the Court.

Provision of Information on Working Hours
By letter dated 9^thMay 2014, the Claimant’s solicitor requested records of the Claimant’s working hours. Some eight weeks later the Respondent furnished the solicitor with all relevant clock cards relating to the Claimant. It was pointed out on behalf of the Claimant that the records provided related to the periods between the Claimant clocking in in the morning and clocking out in the evening. They did not record working time when breaks and periods of inactivity are taken into account.

Relevant Provisions
The following provisions of the regulations are relevant for present purposes: -

Regulation 8 provides: -

• 8. (1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

  (2) Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.

  (3) Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time.

  (4) Each break may be made up of separate periods of not less than 15 minutes each.

  (5) An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.

• An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement.

• 
  12. An employer shall do each of the following in relation to each mobile worker employed by him or her:-
  • (a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;

    (b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;

    (c) include time worked for another employer in the calculation of the mobile worker’s working time;

    (d) keep records which are adequate to show that these Regulations are being complied with;

    (e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records;

    (f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;

    (g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;

    (h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).

• • 17. (1) A person who fails to comply with these Regulations commits an offence.

Adequacy of records
In his submission to the Court the solicitor for the Claimant asserted that the Respondent had failed to maintain adequate records, although no claim on that account was made by the Claimant. On that point reference was made to the Organisation of Working Time (Records Prescribed Form and Exemptions) Regulations 2001 S.I. 473 of 2001. It was asserted that tachograph records do not comply with those Regulations and are not records for the purpose of Regulation 12 of S.I 36 of 2012. It was further contended that the absence of records that comply with S.I. 473 of 2001 placed the burden of proving compliance with S.I 36 of 2012 on the Respondent.

While those submissions are irrelevant to anything that falls to be decided in the instant case, for the sake of completeness the Court should point out that they are entirely misconceived. S.I 473 of 2001 applies for the purpose of s.25 of the Organisation of Working Time Act 1997. They have no relevance to the Regulations in issue in this case. Regulation 12(a) and 12(c) of S.I. 36 of 2012 prescribe the obligation of an employer in relation to record keeping for the purposes of those Regulations. There is no reason in principle as to why tachograph records, properly maintained and recording periods of availability, break times and rest times, could not meet an employer’s obligation under Regulation 12(a) and Regulation 12(c) of the Regulations. Moreover, where there is a failure to maintain records in accordance with Regulation 12, the employer may be liable to prosecution. But, unlike the position arising from the effect of s.25(5) of the Organisation of Working Time Act 1997, a failure to maintain adequate records does not have the added consequence of requiring the employer to prove compliance with the Regulations in proceedings before a Rights Commissioner or this Court.

Rest breaks
The gist of the Claimant’s case is that he was told that he should take breaks after 4.5 hours driving whereas Regulation 8 provides that no person engaged in mobile transport activities shall work for more than 6 consecutive hours without a break. It was rightly submitted on the Claimant’s behalf that there can be a substantial difference between driving time and working time when such activity as loading and unloading is taken into account. However, the Claimant’s own evidence disclosed that there was no material difference in his case. The Claimant told the Court in evidence that he always took his break after driving for 4.5 hours. He also told the Court that he spent between 15 and 30 minutes loading his truck each morning and while he was unable to say the amount of time he spent at other work during the day his evidence was that it was not significant. Consequently, there is no basis for his claim that he worked more than 6 consecutive hours without a break.

Although that finding is sufficient to dispose of this aspect of the case, there are a number of observations that should be made. The memo furnished to all drivers by the Respondent, dated 15^thOctober 2014 (which is before the period cognisable by the within claim), makes it clear that drivers are required to take a break after 4.5working hours. If the Claimant misunderstood that clear instruction the Respondent could hardly be held liable.

There is a further point of considerable significance. Directive 2002/15/EC, which the Regulations are intended to implement, is,inter alia, for the purpose of securing road safety. It is, to that extent, a public law provision. It imposes obligations on those employed in mobile transport activities, and their employers, which are directed at ensuring that their own safety and that of other road users is not imperilled by unsafe driving practices, including driving while fatigued. Regulation 8(1) is for that purpose. It places an obligation on mobile workers not to work more than 6 consecutive hours without a break. The non-observance of that obligation is punishable as a criminal offence. That is clear from Regulation 17(1) which provides that “aperson”who fails to comply with the Regulations commits an offence.As was pointed out by Davis LJ (Jackson and Ellias LJJ concurring) inR. (On the Application of Road Transport Union) v Secretary of Statefor Transport[2013] EWCA Civ 962, (at pars 48, 49,) any attempt by a driver to seek redress having decided not to comply with the the Regulations would be met by a plea ofex turpi causa non oritur actio( a person cannot seek redress for their own illegality) or by the obvious submission that it would not be just and equitable for such a person to recover.

Regulation 8(5) provides that an employer must ensure that the Regulations are complied with by a mobile worker employed by that employer. In this case the Court is satisfied that the Respondent did all that it could have been expected to do for the purpose of ensuring that the Claimant took the breaks that he was obliged to take. It follows that the Respondent did not contravene Regulation 8(5) of S.I 36 of 2012.

Provision of Information In Relation to the Regulations

As found by the Court the Respondent accepted that the Claimant was not specifically informed of the Regulations. Accordingly Regulation 11 was contravened.

Provision of Information on Working Hours
In response to a request made pursuant to Regulation 12(f), the Respondent provided the Claimant’s solicitor with a copy of his clock records. However, these records record the total duration from the time the Claimant reported for duty until he finished work in the evening. They did not record working time when distinguished from periods during which the Claimant took breaks. That was a technical breach of the Regulations. It is difficult to see what material detriment the Claimant could have suffered in consequence of that failure. The Claimant must have known the periods that he spent on breaks and the records provided could easily have been used to extrapolate his working time as distinct from other periods that are not so classified.

It appears to the Court that an obvious purpose of Regulation 12(f) is to provide a mobile worker with such information as they may require so as to ensure that they do not contravene the Regulations by working more hours than are legally permitted. While the failure of the Respondent to particularise the different components of the Claimant’s attendance hours should not be overlooked it could not have undermined that purpose.

Disposal
For all of the reasons set out herein the Court finds: -

• 
  1. The Respondent did not contravene Regulation 8 of the Regulations. The decision of the Rights Commissioner in relation to that Regulation is set aside.
  
  2. The Respondent did contravene Regulation 11 of the Regulations. The decision of the Rights Commissioner to that effect is affirmed. The Court can see no justifiable basis upon which it should interfere with the quantum of the award of €1,000 made by the Rights Commissioner for that contravention.
  
  3. The Respondent did contravene Regulation 12. Having regard to the minor nature of that contravention an award of compensation would not be fair and equitable. The Court directs that the Respondent comply with the Regulations

Signed on behalf of the Labour Court



Kevin Duffy
9th June 2015______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.