The 12-week rule that turned agency drivers into a liability for one UK haulier

Suge Ltd, based in Wisbech, Cambridgeshire, received a formal warning after a public inquiry into maintenance, driver control and transport management failings. The company avoided licence revocation after the Traffic Commissioner accepted that it had made “very significant gains towards compliance” under a new transport manager.

However, the decision also highlights a wider issue for hauliers using agency drivers on a long-term basis.

According to the Traffic Commissioner’s written decision, a DVSA traffic examiner found that Suge Ltd had only one driver employed directly by the operator, while five others were “engaged permanently via an agency”.

The examiner also found that not all tachograph and working-time data had been captured correctly in Tachomaster, and that some calculations were incorrect.

The agency drivers were being paid for between 60 and 80 hours per week. The decision states that, after reviewing six months of vehicle and driver data, the examiner established that the drivers were paid for their full working day, including driving time, other work and rest periods.

The drivers were not being used as a temporary stopgap. The Traffic Commissioner noted that the agency drivers were used regularly and that the operator kept records for both employed and agency drivers.

The agency involved was named in the decision as Iron Trip Ltd. The operator paid the agency, while the director of Iron Trip Ltd was also one of the drivers.

The operator’s director, Gediminas Grikis, told the inquiry that the drivers were used in this way because they “cannot have zero-hour contracts”, reflecting advice he had received from accountants. The decision says he has since been advised to take professional advice.

The Traffic Commissioner said she remained concerned about the operator’s ability to control drivers. She pointed Suge Ltd to UK Government guidance stating that a person is an agency worker if they have a contract with an agency but work temporarily for a hirer.

The decision also refers to the 2010 Agency Workers Regulations, under which agency workers who complete a 12-week qualifying period in the same role with the same hirer are entitled to the same basic working and employment conditions as if they had been recruited directly. These include working time, overtime, breaks, rest periods, holidays and pay.

Suge Ltd has now given an undertaking that, within four months of the public inquiry, all permanent drivers, regardless of hours, will be employed in line with HMRC guidance.

The case did not end with revocation. The Traffic Commissioner said the operator had taken extensive remedial action after the DVSA findings, including the appointment of a new transport manager and the use of external compliance support.

The former transport manager, Sonata Valionyte, lost her repute and was disqualified from relying on her Certificate of Professional Competence. The Traffic Commissioner found that she had not been effectively and continuously managing the transport operation and had sought to manufacture records suggesting greater involvement than had actually been the case.

The operator was given a formal warning, with the Traffic Commissioner noting that the company was in the “unusual position” where only a warning was required because of the progress made since the DVSA intervention.

However, she added that there could be “no repeat”.