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From 1 December 2003, it became a criminal offence to use a hand-held phone, or similar device, when driving. This fact sheet addresses the main provisions of the legislation.
The criminal offence relates to hand-held mobile phones or similar hand-held electronic devices, but rather than seek to define exactly what types of mobile device are covered, the legislation instead prohibits the activity of holding a mobile phone or similar device in the hand whilst driving. The offence applies not only to speaking or listening to a telephone call but also using the phone for accessing any data such as the internet, e-mail, facsimiles and sending or receiving text messages or image/picture messages, provided that the phone is held in the driver’s hand at some point during the course of its operation. This means that in order to be sufficiently ‘hands-free’, the phone cannot be held at any point during its use. A mobile phone that is attached to fixed speakers and does not require the user to hold it whilst in use is acceptable, as is a hands-free mobile phone that has voice activation.
The provisions also make it an offence for someone to require or to ‘cause or permit’ another person to use a hand-held mobile phone or similar device whilst driving. This means that an employer could be held criminally liable if they require or expect an employee to use a hand-held phone whilst driving as part of their duties. However, solely supplying a mobile phone to an employee will not result in liability, neither will phoning an employee when they happen to be driving.
The penalty for contravening the offence is a fixed fine of £60, or a fine on conviction of up to £1,000 if the matter proceeds to court (£2,500 for drivers of goods vehicles or those designed or adapted to carry nine or more passengers).
Offenders will also receive three penalty points on their driver’s licence.
Employers should ensure that any employee who is required to travel by car as part of their duties and who is expected to keep in contact with either the office or with customers during this time is provided with appropriate hands-free mobile equipment, whether they use their own mobile phone or a mobile phone supplied by the Company.
However, it is arguable that simply supplying a hands-free kit is not enough. This is because driving and conducting a telephone conversation are both demanding tasks which staff should not be required to carry out at the same time. Employees should therefore also be given appropriate voicemail or call divert facilities and encouraged to stop regularly in safe places to check for messages and return calls. Alternatively, a passenger could be asked to deal with the calls. Whilst driving, employees should be encouraged to switch the phone off or leave it on but to let any calls divert to voicemail. If employees do have to make or receive a call whilst driving with appropriate hands-free equipment, these should be limited to emergency calls only, with incoming callers being informed that the user is driving and so the call must be kept short.
In addition, employers should consider implementing a comprehensive mobile phone policy expressly prohibiting employees from using hand-held mobile phones whilst driving as part of their duties, whether this is to make or receive telephone calls, send or read text or picture messages or to access the internet or e-mail. The rules should make it clear that a breach is a serious disciplinary offence because of the potential health and safety implications and that it could amount to gross misconduct.
If employees do wish to use hand-held mobile phones whilst driving, the policy should state that they are required to pull over to a safe, permitted location and completely turn off the car’s engine before making or accepting a call, etc. Note that a person may be regarded as ‘driving’ under current law if the engine is running – even if the vehicle is stationary. This means that hand-held phones cannot be used at traffic lights or during traffic jams.
Note that other road safety legislation, covering a driver remaining in proper control of their vehicle whilst driving, continues to remain in force. This means that even if a driver is using an appropriate hands-free mobile phone device permitted by the legislation, if he is using it in an unsafe manner, which causes him to lose proper control of the vehicle, he is still potentially liable to criminal prosecution.
If a driver is found to have used a hand-held device in a genuine emergency or when calling 999 where it would have been unsafe or impracticable to stop the car, he may be exempt from penalty. In addition, the use of ‘press to talk’ two-way radios, commonly used by haulage drivers, taxi drivers and the emergency services, is also exempt.
The Corporate Manslaughter and Corporate Homicide Act 2007 came into force in April 2008. The Act states that an organisation will be guilty of an offence if the way in which its activities are managed or organised causes a person's death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. This will occur only if the way in which the organisation's activities are managed or organised by its senior management is a substantial element of the breach. 'Senior management' is defined as the people who play significant roles either in making decisions about how all or a substantial part of its activities are to be managed or organised, or in the actual managing or organising of all or a substantial part of those activities.
Whilst directors and senior managers cannot be prosecuted under the Act, individuals can be prosecuted for common law manslaughter by gross negligence. The Act is likely to lead to greater emphasis being placed on the steps management took to prevent fatalities in the workplace. This may result in more prosecutions against individuals (particularly directors and managers) under existing Health and Safety legislation.
In line with this, if an employee is charged with driving whilst using a mobile phone when on company business, the police can call a meeting with a director of the employee's employer and request sight of relevant policies, risk assessments and documentary evidence of training and effective management. The employer would need to be able to show the steps it has taken to ensure its employees comply with safe driving standards.
If an employer refuses or fails to co-operate, the sanctions include improvement notices and fines (up to £20,000 in the Magistrates Court and unlimited in the Crown Court), which can be imposed on both companies and managers personally.
Therefore, to reduce the risk of a successful claim, employers should ensure their policies on driving at work are well-known by employees, making it clear that any breach is a disciplinary offence, and support this with the necessary policies and training on safe driving standards. This should be regularly monitored and checked on an ongoing basis.
This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures. If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist. ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.