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New Mobile Laws - Employers beware

Posted on: 20 March 2007
Posted by: Oliver McCann
Service area: Employment

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Recent Figures from the Department of Transport suggest that an overwhelming 90% of people agree with the mobile phone law (not using a hand held device whilst driving) yet 20% admit to breaking the law. It is also suggested that you are 4 times more likely to have an accident whilst driving if using a mobile phone.

In December 2003 it became an offence to drive a vehicle whilst using a hand-held device. The penalty at the time was a fixed 30 fine which could be increased to 1000 on conviction in court (2500 for drivers of goods vehicles or passenger vehicles with 9 or more seats).

More recently, as of the 27th February 2007, the penalty has been increased to 60 and for the first time 3 penalty points will be issued against the offender.

Legislation
So what you may ask? Well the catch for Employers is that the legislation also makes it an offence to "cause" or "permit" another person to drive while using a handheld device. Many Employers require their employees' to be on the road whom, more often than not, are issued with a mobile phone in order to be contactable or to report in regularly etc.

There may exist a culture where the Employee feels he must answer the phone regardless of the fact that it is against the law. In these circumstances it would be easy to see why a prosecution may follow on grounds of "causing" or "permitting" the offence to take place.

Responsibility
Consider further the potential of a Health and Safety Executive Prosecution following an accident of one of your employee's whilst driving in the course of his employment using a mobile phone to take a business call.

As an employer you have responsibility to safeguard the health and safety of your employees' and to carry out risk assessments to identify risks. A failure to deal with this particular issue leaves you wide open to a prosecution.

Another concern now is that your employee may lose his or her licence if the 3 points in aggregate with other points totals 12. What do you do where it is an essential requirement of the job that the employee has a licence?

First thought would be to dismiss after considering all the alternatives. But this may be contested by an aggrieved employee who says "but my Employer insisted I answered the phone whilst driving "or "he always phoned whilst I was on the road and wouldn't provide me with a hands free kit"

Policy
The problem can be easily tackled by adopting a clear mobile phone policy which strictly prohibits the use of "hand-held" phones or devices while driving. It must be made clear that employees, who are driving a vehicle, must not make or accept a call or text on a hand-held device unless parked with the engine switched off.

It should be made clear that Employees found to be in breach of this policy would be subject to disciplinary proceedings.

Where hands free kit is provided to tackle the problem it would still be advisable to ensure there is a policy governing such use. Keep calls to a minimum.

Make sure that calls can be received and made without taking the hands off the steering wheel ie. voice dialling and auto-answering. Even then express your preference that calls are made when stationary and the engine switched off.

If you require any advice or assistance in developing or implementing your "Mobile Phone Policy" please feel free to contact Oliver McCann.

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