Letter of the law: Hand-held calls to be banned on the road

New regulations making the use of hand-held phones while driving a criminal offence will be introduced in a few weeks. Employers who knowingly allow employees to use hand-held phones to take calls could also face prosecution.

These developments follow the guidance already provided in the Highway Code. Although not legally enforceable, the Highway Code (section 127) already warns drivers not to use hand-held phones while driving. This amendment was made after research showed that people using mobiles are four times more likely to be involved in an accident. The general health and safety risks should have already caused concern for employers.

In August 2002, the Department of Transport issued a consultation document on proposals for the introduction of a new offence relating to the use of hand-held telephones by drivers. Responses resulted in the decision for new regulations to be brought into force by 1 December, amending the Road Vehicles (Construction and Use) Regulations 1986.

Driving, under the interpretation of the new law, will also include times when the car is switched on but stationary for short periods - for example, at traffic lights and during short hold-ups. Phones will be allowed to be used by drivers caught in serious traffic jams, or in emergency situations where the driver cannot safely stop to use the phone. The law will apply to all mechanically-propelled vehicles - including motorcycles. Cyclists, however, will not be included in the new rules.

Due to the numerous types of hands-free phones and kits, drivers can only be prosecuted if they actually hold the phone in their hand during any part of its operation: for speaking, listening, using the device for accessing data (including the internet), or sending or receiving text messages or other images. A phone in its cradle or operated via the steering wheel (or handlebars of a motorbike) will not breach the new regulations.

The Department of Transport has made it clear that, ideally, drivers should not use hands-free phones while driving either. However, this view is not incorporated within the scope of the new regulations, due to the obvious difficulty of enforcing it.

An exception is made in the regulations for two-way radio microphones, as they have been used for many years without giving rise to road safety concerns (and concerns were raised by the emergency services, who have traditionally used such devices).

If employers expect their staff to use hand-held phones while driving, they may be regarded as causing or permitting the offence to take place. Simply advising workers not to use hand-held phones while driving may not be sufficient if, in reality, it is expected that they will need to use mobiles as a part of their role, and have taken calls while on the road in the past.

If this is the case, it will be safer for employers to consider replacing hand-held phones with hands-free ones to avoid being accused of permitting an offence to take place. Ideally, employers should also issue guidance to their staff not to use hand-held phones while driving. The Department of Transport states that employers will not be held liable for supplying a mobile phone that they happen to call while the employee is driving.

At present, the offence will result in a £30 fixed penalty, or a fine on conviction of £1,000 (£2,500 for drivers of lorries, buses or coaches). It has been suggested that in the future, the new offence may also attract three penalty points on a driving licence.