Since 1 December 2003 it is an offence to use a hand held phone or other similar device which performs an interactive communication function whilst driving.
Drivers must pull over to a safe location and turn the engine off before making or receiving calls, text messaging or accessing the internet.
Drivers committing an offence under the new regulations will be liable to pay a £30 fixed penalty or a maximum fine on conviction in court of £1000. (Lorries, bus and coach drivers face a fine of £2,500). The Department of Transport intends that in future the offence should also attract three penalty points and the fixed penalty fine be increased to £60.
Employers' Liability
The new regulations also create an offence of "causing or permitting" another person to drive whilst using a hand held phone or other similar device. Employers may, therefore, be prosecuted if they require, or knowingly permit, their employees to use their hand held phones when driving.
The DfT has stated that employers cannot expect their employees to make or receive mobile phone calls whilst driving. This must be reflected in the company's health and safety policy and risk management policy. Information from the DfT indicates that employers will not be liable simply for supplying a telephone or for telephoning an employee who was driving. However, employers must send a clear message to employees that they are forbidden to use their hand held mobile phones whilst driving and their employer will not require them to make or receive calls when driving.
Employers should inform their staff that, when driving, hand held mobile phones should be switched off, or, if switched on, the calls should be left to go through to voicemail, and that a safe place to stop should be found to check messages and return calls. Company policy should specify that using a hand held phone or similar device whilst driving is a criminal offence and will be treated as a disciplinary matter.
If no policy is implemented and employers are shown to have permitted the use of a hand held mobile phone whilst driving employers may be:
- Liable under the Road Vehicles (construction and use) Regulations 2003;
- vicariously liable if an employee causes an accident while driving on business; and
- liable under the Health & Safety at Work Act 1974 - Employers are obliged to provide a safe system of work and to do what they reasonably can to ensure the safety of staff and others;
- liable if there is a fatal accident involving the use of a hand held mobile phone whilst driving where this practice was well known and encouraged throughout the company there could be the possibility of a criminal corporate manslaughter prosecution against directors, as has been the case with reference to working time regulations.
Practical tips for employers
The main points on which employers should consider giving guidance to their employees should include:
General guidance
- Switch off the phone whilst driving and let it take messages;
- Leave the phone switched on and let the call into voicemail;
- Ask a passenger to deal with the call;
- Find a safe place to stop before turning off the engine and picking up the messages and returning calls.
If hands free phones are to be permitted, as a minimum, guidance should be provided that:
- Limit outgoing calls to emergency use and when it is safe to do so;
- Use voice activation technology when making outgoing calls;
- Tell all incoming callers that they are driving and to keep the call short.
A clear section should be inserted into the company health and safety policy on Company procedure on the use of mobile phones and driving, this should be brought to the attention of all employees, breach of this policy should be a disciplinary offence and compliance with the policy monitored.
To access a detailed paper on this issue please click here.
If you require specific advice or information about the new mobile phone laws and how they may impact on you please contact Jessica Burt at jessica.burt@cms-cmck.com or on +44(0)20 7367 3589 or Simon Jeffreys at simon.jeffreys@cms-cmck.com or on +44(0)20 7367 3421.
