Three different agencies. Three different contracts. And all three had a section somewhere around page six that said, in close-printed legalese, that I agreed to opt out of the 48-hour working week under the Working Time Regulations.
I signed all of them. Didn't think twice.
Took me longer than I'd like to admit to find out that for HGV drivers — for mobile workers in road transport, specifically — that clause is legally meaningless. The opt-out that exists in the general Working Time Regulations 1998 does not apply to us. The Road Transport (Working Time) Regulations 2005 governs our working time, and it contains no opt-out provision.
Your agency can put whatever they like in the contract. The law doesn't give them the ability to sign it away, and it doesn't give you the ability to sign it away either.
Why two different sets of rules exist
Most workers in the UK are covered by the Working Time Regulations 1998. That's the regulation most people are thinking of when they talk about the 48-hour week. And yes — under the 1998 Regulations, a worker can opt out. In writing, voluntarily, revocable on notice. It's used all over the place in jobs where long hours are routine.
Mobile workers in road transport — which includes HGV drivers under EU 561/2006, so basically all of us on tacho — are instead covered by the Road Transport (Working Time) Regulations 2005 (SI 2005/639). This was the UK implementation of the EU Road Transport Working Time Directive. And it specifically excluded the opt-out. The regulation requires employers to take all reasonable steps to ensure compliance with the 48-hour average. There's no mechanism for the worker to waive that.
The distinction matters because the two Regulations are not the same document. A clause in your employment contract that cites the 1998 Regulations opt-out is citing the wrong law. A clause that cites the 2005 Regulations opt-out is citing something that doesn't exist.
What the 48 hours actually means
The 48 hours is an average. Not a weekly cap. The cap is 60 hours in any single week — you can work up to 60 hours in a bad week if the run demands it. But averaged across a reference period, your working time has to come in at or under 48 hours a week.
The default reference period under the 2005 Regulations is a fixed quarter. The three periods run December to April, April to August, and August to December. If your employer has a collective agreement or workforce agreement in place, they can extend the reference period — up to 26 weeks, for objective, technical, or organisational reasons. But even with that extended period, the 48-hour average still applies. It's just calculated over a longer window.
Working time under the 2005 Regulations includes driving time, other work, availability periods where you're not free to use the time as your own, and training. It doesn't include rest breaks, rest periods, or periods of availability where you're genuinely free — parked up at a delivery bay with no obligation to do anything, for example. The definition of availability is its own headache and I've covered the tacho mode side of that in more detail elsewhere on this site.
What counts as 'working time' and what doesn't
Here's where the confusion usually lives. A lot of drivers — and a lot of agencies — conflate driving time under 561/2006 with working time under the WTD. They're not the same thing and they don't reset on the same clocks.
Under the 2005 Regulations:
- Driving counts as work
- Loading and unloading counts as work
- Assisting at delivery or collection counts as work
- Time waiting that you can't use freely counts — though there are specific rules on availability periods that make this situation-dependent
- Time at a training course counts
- Administrative tasks like completing paperwork at the depot count
What doesn't count:
- EU 561 rest periods (daily rest, weekly rest)
- Meal breaks where you're genuinely free
- Time off between shifts
If you're tramping and taking a 9-hour daily rest in the cab, that rest doesn't count toward your 48-hour working time total. But if you're sitting at a loading bay, told to wait and not to leave the cab, that time might be availability or it might be work — depends on whether you knew about it in advance and had freedom to use it as you wished. The legal distinction is subtle. Most employers are inconsistent about how they record it.
The night work restriction on top of all this
Separate from the 48-hour average is a night work limit. Under Regulation 9 of SI 2005/639, if you perform night work in any 24-hour period, your working time in that period can't exceed 10 hours. Night is defined roughly as the period between midnight and 04:00 — the specific window is defined in the Regulation.
The 10-hour night work limit can be extended by a collective or workforce agreement, for objective or organisational reasons. An individual opt-out, again, doesn't exist for this.
Most night trunk drivers I've spoken to have never heard of the 10-hour restriction. It doesn't come up at agency inductions. It doesn't come up in CPC training much. But it applies, it's enforceable, and it's separate from the daily driving limit under 561. You can have taken your 9-hour daily rest, be fully legal on EU 561, and still have a WTD night work breach if you worked 11 hours in a night period.
Breaks under the 2005 Regulations
Also separate from the EU 561 break rules: the WTD has its own break requirements. Under Regulation 7 of the 2005 Regulations, no mobile worker can work more than 6 hours without a break. Work between 6 and 9 hours — 30-minute break minimum. Over 9 hours of work — 45-minute break minimum.
These aren't the same as the 561/2006 break requirements. The 561 break is specifically tied to driving time (45 minutes after 4.5 hours of driving, or the 15+30 split). The WTD break is tied to working time overall. A 30-minute loading wait that reset your 561 driving clock didn't necessarily satisfy your WTD break obligation if you were physically working during it.
In practice, a properly-taken 45-minute EU 561 break usually satisfies the WTD break requirement too. But 'usually' isn't 'always', and the two sets of rules don't perfectly overlap.
Enforcement and what happens when it goes wrong
DVSA enforces the 2005 Regulations at the roadside and at operators' premises. The enforcement mechanisms are separate from the 561 infringement scheme — you won't see a WTD breach on your tacho analysis the same way you'd see a daily rest infringement. But operators are required to keep records of working time, and those records can be requested.
If an operator consistently runs drivers over the 48-hour average, that's a matter for the Traffic Commissioner as well as DVSA. Working time isn't ring-fenced from the operator compliance picture.
For agency drivers specifically: the liability question of who's responsible — agency or hirer — is one that's genuinely contested. The 2005 Regulations place the obligation on the employer. Where the agency is the employer and the hirer is directing the work, both have some exposure. The practical result is that drivers often have neither the agency nor the hirer keeping a close eye on their cumulative hours, and nobody notices until something goes wrong.
So no. You can't opt out. The agency's contract clause doesn't change that. And if you're regularly working 55-60 hour weeks because dispatch keeps telling you you've signed the opt-out — they're wrong. Worth knowing.
If you want to track your WTD working time alongside your 561 compliance in one place, ShiftOwt does both — £5.99/mo for drivers, agency pricing on request.