Employers should communicate a clear statement or policy on the use of mobile phones whilst driving – before the implementation of the Regulations on 1 December, warns Hilary Larter, Partner at Beachcroft Wansbroughs. Here she clarifies the definitions in the new legislation and offers guidance on what employers should be doing now.

On 1 December 2003 a new law will come into force to prohibit drivers using a hand-held mobile phone, or similar device, while driving. This is introduced as an amendment to the Road Vehicles (Construction and Use) Regulations 1986. All employers are advised to be aware of the detail of the legislation as they may be liable for the use by their employees of mobile phones whilst driving.

Under the new law the penalties for individuals will initially be a fixed penalty of £30 or a fine of up to £1000 if the offender goes to court (£2500 for drivers of goods vehicles or passenger carrying vehicles with 9 or more passenger seats). It is also to be made an endorseable offence, resulting in three penalty points on the driver’s licence.

Key definitions

In order to understand the new law, first it is important to comprehend the definitions in the Regulations.

The definition of a hand-held mobile phone

The definition of a “hand-held phone” will include any electronic device used for accessing oral, text or moving images (including the internet, text messages and video phones) if the device is hand-held during some point whilst driving. This could include cradling the phone between a driver’s shoulder and ear. The definition of “holding a phone” will not include pushing buttons on a phone that is held in a cradle or pressing buttons on a steering wheel of a car or motorcycle handlebars (ie a hands-free device). It will also still be possible to use navigation equipment provided it is not a hand-held device.

There are two exemptions:

• “Press to talk” radios, such as used by the emergency services and taxi drivers.
• Using a hand-held phone for a genuine emergency call to the emergency services if it would be unsafe or impracticable for the driver to stop driving.

What is "driving"?

Under the new law, a person is “driving” if the vehicle is either moving or stationary with the engine still running, for example, at traffic lights or in traffic jams. This means even if the driver has pulled over to make or receive a call they may still be committing an offence if their engine is still running. It should be noted that in exceptional traffic jams, such as a lengthy motorway stoppage, someone would not be “driving” (and could use a mobile phone) if their engine is switched off.

Hands-free mobile phones

Hands-free mobile phones are those which are positioned in a cradle or on the steering wheel of a car or handlebars of a motorbike.

This new law will not ban the use of hands-free mobile phones provided the phone is not held at any point. The Department of Transport has however noted the evidence that using a hands-free phone while driving distracts the driver and increases the risk of an accident.

Existing law does require drivers to be in proper control of their vehicle, and careless or dangerous driving laws can be applied to driving while using a hands-free phone if the police consider this to be appropriate.

Potential employers' liability

Employers face potential liability if they “cause” or “permit” employees to breach the Regulations. The Department of Transport considers that employers would not be liable simply because they have supplied a telephone to or call an employee who is driving. However, they are likely to be liable if they require employees to use hand-held phones whilst driving on their business. The Department of Transport also believes employers might also be liable if they fail to forbid employees to use such phones whilst driving on company business.

In addition to liability under the Regulations, health and safety laws also expose employers to potential liability in respect of the health and safety of their staff at work. This would include the health and safety of employees whilst driving for work.

What should employers do now?

Given the potential liability for both employers and employees, employers should communicate a clear statement or policy on the use of mobile phones by employees whilst driving. This should be issued before the implementation of the Regulations on 1 December 2003. Employers could do this by introducing an amendment to an existing health and safety policy or issuing an e-mail instruction.

The statement should make it clear that employees, who are driving a vehicle, must not make or receive a call on a hand-held mobile phone unless parked with the engine switched off. It is also important that managers are instructed not to attempt to speak to employees if they know they are driving. Employees should be encouraged to allow their phone to take messages and then respond to them when safely parked!

One potential response for employers could be to provide hands-free sets to employees to try and circumvent potential liability. Given the general requirements under health and safety laws, employers may still fall foul of legislation and therefore a total ban on the use of all phones while driving is recommended. If it is decided that such use should be banned this must also be clearly communicated to employees.

Employers could also enforce their policy statement by confirming any driving offence by an employee whilst using a phone will mean the employee is subject to the employer’s disciplinary procedure.

This is important legislation that is likely to affect many employees given the ever increasing use of mobile phones for work. Employers ignore taking any steps in developing and communicating a policy on this issue at their peril.