How operators “employ” their drivers has been under scrutiny by the Traffic Commissioners for some time. The DVSA and the Traffic Commissioners during encounters, investigations and hearings always ask about the employment status of drivers.
The expectation is that drivers are directly engaged as employees or are engaged as ‘temporary’ workers through driver agency that supplies drivers to multiple operators.

‘Self-employed’ drivers
HMRC guidance is that’s its ‘very rare’ for a commercial vehicle driver to be genuinely self-employed unless they are an owner-driver and have their own Operator’s Licence and vehicle – i.e. they are a sub-contractor.

How does the Traffic Commissioner view Self employed, Limited Company Drivers and Agency?

Self Employed

In a Public Inquiry an operator who had a bridge strike was found to be using self employed drivers. The operator had provided the drivers with contracts that specifically stated the operator did not “supervise, direct nor control” drivers. The Traffic Commissioner considered the ‘self-employed’ label wasn’t correct and therefore the relationship wasn’t consistent with an operator’s responsibilities under the Operator’s Licence.
There licence was revoked, and that decision was upheld at the subsequent appeal to the Upper Tribunal.

“Limited Company” Drivers

In another Public Inquiry The Traffic Commissioner determined that the use of ‘LTD’ drivers constituted lending of the company’s Operator’s Licence to each of the ‘LTD’ drivers. Consequently, the Operator’s Licence was revoked. The Traffic Commissioner also warned of the risk of vehicles operated in such circumstances being impounded by the DVSA.

Agency drivers

Agency drivers provide flexibility for operators to deal with sudden or seasonal increases in work or a shortage of staff but operators should not be using agency drivers as long-term solutions. The Traffic Commissioner will regard the use of agency drivers as a sham to get round self employed status if they are used on a permanent basis over a long period. At a Public Inquiry an operator whose drivers were all agency and had been used over a long period was regarded as a front for “Limited Company” drivers.

In this case, the Traffic Commissioner had cause to scrutinise the agency arrangements, as all the operator’s drivers – who were all used by the operator on a permanent basis – were engaged via a driver agency and had been since the date of the operator’s previous public inquiry (15 months earlier). At the earlier public inquiry, all the operator’s drivers had been ‘LTD’ drivers and the operator had given an undertaking that they would stop using ‘self-employed’ and/or ‘LTD’ drivers. The operator’s solution was to transfer the same drivers to being supplied to it through a driver agency.

The Traffic Commissioner made it clear that in these circumstances an operator and transport manager risk their good repute.
The Traffic Commissioner found that the agency arrangements in this case were a sham and were being used as a front for the operator’s continued use of ‘LTD’ drivers. The operator was therefore gaining an unfair commercial advantage over other operators who correctly engaged their drivers.

He went on to confirm that, even where there is a legitimate agency arrangement, operators must ensure:

• the obligations under the Agency Worker Regulations 2010 are met, including the right to equal treatment for agency workers after a qualifying 12-week period.
• the requirement for all agency workers to be provided with a ‘Key Information Document’ is met.
• they, and the agency, co-operate to ensure drivers receive an adequate induction.
• they exercise control over agency drivers in the same way they would directly engaged drivers, e.g. the management of drivers’ hours infringements and, ultimately, ceasing to use non-compliant agency drivers.

What should operators do?

Drivers should be directly engaged by the operator as employees or as ‘temporary’ drivers through a bona fides driver agency supplying drivers to multiple operators.