The agency brief that left out the important bit
Three months into my first agency stint, a dispatcher rang me at 05:30 with a run from Stafford to two drops near Glasgow and back. Five hundred and forty miles, both ways, with a two-hour expected turnaround at the first delivery.
I looked at my remaining daily hours on the card. I'd driven 38 hours that week already. I said it seemed tight. The dispatcher said it would be fine, the client had factored in the hours, and to call if there were any problems.
By the return leg on the M74, I was looking at an overrun. I stopped at Abington services and called the agency. They told me to park it, get some rest, and pick up the return in the morning. Which I did — but I still had a minor daily driving extension infringement on the record from the outbound leg.
Three weeks later I got a call from the hirer's TM asking about the infringement report. My agency contract had the run-sheet their client had given them as evidence the schedule was pre-approved. I wasn't prosecuted. But the question of whose OCRS it affected — mine, the agency's, or the hirer's — was one I hadn't thought about until then.
Article 10 of EU 561/2006 — the operator's scheduling obligation
Article 10(1) of EU 561/2006 states that transport undertakings must not pay drivers — whether by bonus, premium, or other incentive — in a way that could endanger road safety or encourage them to breach the regulation. This includes payment schemes based on speed of journey or volume of goods delivered if those schemes incentivise hours violations.
Article 10(2) goes further. Transport undertakings must organise road transport operations in a way that allows drivers to comply with EU 561 and the tachograph regulation. They must not schedule journeys that cannot be completed legally. If the run can't be done within the hours rules, the operator isn't permitted to instruct it.
That's the key phrase: if the schedule makes legal compliance impossible, the operator has breached Article 10 regardless of whether the driver also gets a citation. The obligation runs both ways — the driver has a duty to comply, and the operator has a duty to ensure compliance is possible.
Which operator's OCRS takes the hit?
The OCRS — Operator Compliance Risk Score — is linked to the operator licence. When a driver incurs an infringement, the infringement is assigned to the operator for whom they were working at the time the infringement occurred.
For agency drivers, this is the hirer — the operator at whose direction the driver was working during the infringement — not the agency. The agency places drivers; the hirer directs the work. The hirer holds an operator licence. The hirer's OCRS is the one affected by infringements that occur during shifts worked for them.
This matters enormously for small fleet operators who use agency cover. A hirer with a clean OCRS who routinely runs agency drivers on impossible schedules is accumulating infringement risk on their own licence — not the agency's. A lot of small operators assume that using agency drivers creates a buffer between infringements and their own compliance record. It doesn't.
The driver card records the driving activity regardless of who employed the driver at the time. When that data is downloaded, the infringements on it are linked through to the hirer's records. DVSA's systems connect the tachograph data to the relevant operator licence through the vehicle registration.
What about the driver's record?
The infringement is on the driver card and in the DVSA records. A graduated fixed penalty notice, if issued, is issued to the driver. Points can accumulate on the driver's DVSA enforcement record separately from the OCRS impact on the operator.
Agency drivers who are repeatedly infringement-cited become visible to DVSA's targeting systems. An ANPR scan of a vehicle picks up the registration and OCRS. But the card data pulled at a roadside check includes the driver's infringement history. A pattern of infringements across multiple operators — all logged on the same driver card — is something DVSA can see.
Agency drivers who move between hirers thinking each individual operator sees only a clean slate aren't quite right. The driver card carries the history. The hirer's TM who downloads your card on day one of a new assignment can see your recent infringement history on the card. The ones who don't check before they put you on a run are taking a risk, but they're often the ones who'll then blame you when an infringement appears.
What to do when a schedule is unrunnable
Article 10 puts the obligation on the operator to produce legal schedules. But the driver who accepts and attempts an impossible schedule isn't protected just because the operator breached Article 10. The driver still has their own obligation to comply with EU 561. You can be cited even if the operator is also cited.
The practical defence — and it is a genuine defence — is documentation of the issue raised at the time. If you called the agency or the hirer's TM and said 'this schedule puts me over my daily limit' and you have a record of that call, you've created evidence that you identified the problem. If you still attempted the run and still went over, the infringement is still on the card — but the context is different from a driver who said nothing.
If the dispatcher tells you the schedule is fine when you believe it isn't, the DVSA number to call is 0300 123 9000. They have a confidential reporting line. You're not obligated to attempt a run that you believe will put you in breach. Article 10(3) — in the retained EU version — specifically provides that drivers shall not be responsible for infringements where they were following instructions that resulted in a breach. The emphasis is on 'following instructions that resulted in a breach' — not just being close to the limit, but being told to complete work that makes compliance impossible.
The two-employer card situation
Some agency drivers run a permanent part-time job alongside agency shifts. Both sets of hours are on the same driver card — EU 561 doesn't care who employed you, it adds up all the driving. Your weekly 56-hour limit and fortnightly 90-hour limit cover all driving on the card, regardless of how many employers it was done for.
A driver combining two part-time roles — say, four days a week for a permanent employer and agency shifts at weekends — can find themselves over the fortnightly limit without either employer having any idea the other is involved. Each employer sees only their runs on the tachograph analysis they pull. Neither sees the full picture.
The combined hours are on the card. DVSA see the card. If you're over ninety hours in a fortnight across two employers, both operators have an infringement problem — and so do you.
I've written about the two-employer card situation in detail here. The short version: tell both employers about each other. It's the only way they can schedule responsibly, and it's the only way you can stay within the fortnightly limit.
When DVSA look at an agency driver infringement
DVSA can and do refer individual driver infringement patterns to the Traffic Commissioner. If a driver accumulates repeated serious infringements across multiple operators, DVSA can write to the TC with the evidence. The TC can then take action against both the driver — potentially requiring them to appear at a public inquiry regarding their fitness to hold a driving licence — and the hirer, whose OCRS and operator licence may be under review.
For the hirer, a string of infringements from agency drivers on their work creates exactly the same OCRS pressure as infringements from permanent drivers. Red OCRS increases the probability of roadside stops under ANPR targeting. A premises inspection is more likely. And if the inspection reveals systemic failures — schedules that routinely require illegal driving, no evidence of tachograph analysis, no infringement review process — the Traffic Commissioner can convene a public inquiry into the operator licence itself.
Small operators who run agency drivers without proper tachograph analysis and without reviewing infringement reports are, in practice, managing compliance risk blind. The agency driver's card is evidence of how their vehicles were being run. Not reviewing it is a choice — but it's a choice with consequences when DVSA look at the records.
If you're an agency driver managing hours across multiple hirers, or a small operator trying to track compliance from agency staff, ShiftOwt handles EU 561 tracking automatically — £5.99/mo for drivers, agency pricing on request.