A hands-off policy

Charlie Pring looks at how motorists are reacting to the new law prohibiting the use of hand-held mobile phones while driving and looks at the impact it is having on employers' liability for employees on the road.

The Department of Transport estimates that drivers using hand-held phones are four times more likely to be involved in an accident.The Automobile Association Motoring Trust suggest that phone use makes drivers up to six times more likely to have an accident, even if using hands-free kits.

Against this background, a new law was introduced.From 1 December 2003 it became a specific offence to use a hand-held mobile phone or a device 'which performs an interactive communication function by transmitting and receiving data' while driving.

Implementation

Unlike the position in Scotland, where offending motorists have been receiving fines from 1 December onwards, the Association of Chief Police Officers (ACPO) recommended that police forces in England and Wales issue only verbal warnings instead of fixed penalty notices for the period until the end of January 2004.

ACPO was keen to assist in the education of drivers, especially as several surveys suggested widespread ignorance of the offence.Now that the grace period has ended, it remains to be seen how seriously motorists will treat the law. At the time of its introduction, a survey by the RAC Foundation found that four out of 10 motorists intended to ignore the ban.

A survey by Halfords in late December suggested that the law was being ignored by 45 per cent of motorists, although this figure may have been because of the police's temporary period of grace.Bearing these statistics in mind, however, employers should not rely on employees to follow the law.Instead, they should take positive action to protect themselves from liability by implementing a policy prohibiting the use of hand-held phones while driving and extending it to cover hands-free phones.

Employer liability

As well as applying to drivers, the law also applies to 'anyone who causes or permits any other person' to use a hand-held device while driving. This category relates to employers, which risk prosecution if they permit their employees to commit an offence.

The Department of Transport's view is that employers will not be liable simply because they have supplied a mobile phone to employees or because they inadvertently call an employee who was driving.

These guidelines are helpful from an employer's perspective as they clarify that simply providing a phone to a driver will not result in liability. However, employers need to put proper policies in place for mobile phone usage. Employers most at risk are probably 'white van man', lorry companies and commercial travel companies, but the warning to all employers is clear.

Practical steps

Employers whose workers use vehicles for business should take positive action to protect themselves from liability for the acts of their employees.Employers should:

- Amend/implement a car/vehicle or mobile phone policy explaining the new offence and prohibiting use of hand-held devices while driving

- Make it clear to employees that they must stop (at a safe place) to use the phone if it is essential that they are contactable or if they make calls while working

- Consider extending the policy to prohibit the use of hands-free devices.

The importance of adopting a policy instructing staff when and how to use their mobile phones (especially when driving) cannot be underestimated. It will assist in showing that the employer does not permit employees to commit an offence.

As the impact of the law increases, the extent to which employers will be affected remains to be seen.The RAC believes that police forces may be keen to make an example of well-known employers to show that the law is being taken seriously.

To have and to hold?

It is not an offence under the law to drive while using a hands-free mobile phone (one that can be operated without holding it). However, drivers using hands-free devices still risk prosecution under existing road safety legislation if they fail to maintain proper control of their vehicle or drive carelessly or dangerously.

A stark reminder of this emerged in December 2003 when a driver was jailed for five years for killing a motorcyclist while the car driver was talking to his wife on a mobile.

Employers can be vicariously liable for the actions of their employees.Vicarious liability is the legal principle that allows an employer to be held liable for certain wrongful acts of its employees committed in the course of employment. For example, if a driver drives negligently in the course of his/her duties (perhaps by using a hand-held phone at the wheel) and causes an accident, his/her employer could be held liable for any resulting damage or injury.

The Department of Transport's guidance states that drivers should not use even hands-free phones while driving because of the potential distraction.

Source: Road Vehicles (Construction and Use) (Amendment) (No4) Regulations 2003

Charlie Pring is a solicitor in the Employment and Pensions Group of City law firm Taylor Wessing

To use or not to use

Using a hand-held device includes making or receiving calls, text messaging or accessing the internet.It is irrelevant whether the vehicle is moving as it is an offence to use a phone in a stationary vehicle while the engine is running, for example at traffic lights or in a traffic jam.

Anyone caught faces a £30 fixed penalty fine or a fine of up to £1,000 on conviction in court (£2,500 for drivers of goods vehicles, buses or coaches).The offence does not result in driving licence points (although in the future it will result in three penalty points).

There is an exemption for 999 (or 112) calls in genuine emergencies, where it is unsafe or impracticable to stop in order to make the call.