From 1 December 2003 businesses that permit their employees to use hand-held mobile phones whilst driving, will be committing a punishable offence under the Road Traffic Act.
Present laws governing mobile phone use mean that motorists can only be prosecuted for using hand-held mobiles while driving, if it means that they fail to keep control of their vehicle. Under the new legislation, any employee found guilty of using a hand-held mobile phone while driving will face an initial fine of £30, rising to a maximum of £1000 if the case is brought to court, and three penalty points on their driving licence for each offence.
Employers will have to ensure that they have a policy in place (and communicated to employees) on the use of mobile phones in vehicles used by their employees in pursuit of their work. Failure to do this could possibly result in the employer being prosecuted (vicarious liability), for the actions of their employees whilst driving company vehicles or on company business.
If an accident were to result, causing a fatality or injury the employer could face prosecution, as well as possible compensation claims for any resulting loss or injury. Insurance can be proved void if it is established that the accident was the result of using a mobile phone.
The ban will not apply to the use the of hands-free mobile phones as yet but a total ban on the use of all mobile phones whilst driving may be implemented in the future. Research has shown that it is not so much the holding of the phone that is a problem, but the actual conversation that is taking place. Variations in speed, driving close to other vehicles, wandering on the roadway and slower reactions, have all been attributed to the use of mobile phones, as the driver’s concentration is distracted.
RiskSmart, a provider of online risk assessment solutions, has developed a mobile phone policy template which can be accessed for free here
“It is recommended restricting or prohibiting hands-free phone kits in cars,” said Peter Wilson, MD, RiskSmart. “If a policy is in place and an employee subsequently chooses to ignore company policy and guidelines and uses their phone whilst driving, the employer will not be liable,” he continued.
Related items
Mobiles and company cars
Company car policy
One Response
loophole in law
The legislation makes no provision for employees using their own mobiles on company business.
The Department of Transport guidance says employers will not be liable simply because they supply an employee with a mobile phone or if it phones the employee when he or she may be driving.
However, it does indicate that the company could be criminally liable unless it has expressly forbidden its staff using that mobile.
But this highlights a loophole: what if the phone is not company owned?
This has the potential to be massively confusing. It is unclear from this guidance whether an employer will be liable if the employee uses his or her own mobile phone for company reasons while driving and has not been expressly told that this is forbidden.
Regardless of who provided the phone, this has potentially far-reaching consequences over insurance for instance. An employee involved in an accident while using his or her own phone may not be covered.
The correct guidance to employers is that companies should be writing to all their staff, whether they are provided with mobile phones or not, telling those employees clearly and unequivocally that it is company policy that an employee must not use a mobile phone while driving on company business, and that breach will be treated as a serious disciplinary matter.
Alison Loveday, employment partner at Manchester law firm Berg & Co