Charlie Ping 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.Â
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.
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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.
