Employer Can Be Liable For An Employee Using A Mobile Phone While Driving For Work

A Police Clamp Down

There has been a lot of press coverage about people using the phone while driving and that there is going to be a clamp down by the police with an increase in fines and penalty points.

Driving is known to be the most dangerous work activity that people do. This risk is greatly increased when people use the phone while driving. The use of the phone is not limited to telephone calls. The majority of use is checking emails, social media and sending and receiving text messages.

Research indicates that they are also four times more likely to crash, injuring or killing themselves and/or other people. Using a hands-free phone while driving does not significantly reduce the risks because the problems are caused mainly by the mental distraction and divided attention of taking part in a phone conversation at the same time as driving.

The Law Says A Driver Cannot Drive and Use a Mobile Phone

It is a criminal offence for a driver to use a hand held mobile phone whilst driving.

It can be illegal to use a hands-free phone while driving. Depending upon the individual circumstances, drivers could be charged with ‘failing to have proper control of their vehicle’.

In more serious cases, the use of any type of mobile phone could result in prosecution for careless or dangerous driving.

Businesses Can Also Be Liable To Prosecution

It is also an offence to “cause or permit” a driver to use a hand-held mobile phone while driving. Therefore, employers can be held liable as well as the individual driver if they require employees to use a hand-held phone while driving.

The Police may check phone records when investigating fatal and serious crashes to determine if use of a phone contributed to the crash. Employers who require staff to use any mobile phone while driving for work could be prosecuted if an investigation determined that such use of the phone contributed to a crash. Claims in the civil courts could also result.

What Your Business Should Do

Ensure all staff , including senior managers and line managers, understand that the organisation expects everyone who drives for work to drive safely for their own, and others’ benefit.  Have a Mobile Phone and Driving Policy that does what you want it to do.

Tell Staff About The Policy And What Is Expected

As part of recruitment, training and staff appraisal, remind drivers and line managers about:  the dangers of using a hand-held or hands-free mobile phone while driving,  the organisation’s policy on mobile phone use, the need to let the phone go to voicemail, or to switch the phone off while driving, and to stop in a safe place to check messages, or to allow a passenger to use the phone, that good communication can easily be maintained without using a phone while driving,  the importance of line managers not expecting staff to make or receive calls when driving,  the legal, financial and bad PR consequences that could result from using a mobile phone while driving.

Avoid Using a Mobile Phone

In particular, emphasise that staff should never make or receive calls, send or read texts or emails or surf the internet on a mobile phone, or any similar device, while driving.

Monitor Compliance

Recent surveys spotted around 3% of car drivers and 5% of van and lorry drivers using either a hand-held or hands-free phone while driving. Encourage drivers to raise concerns with their line manager, and encourage line managers to respond positively. This will help to identify and manage the factors that make drivers more likely to use a mobile phone while driving. Staff should be encouraged to report any pressure from managers or customers to use a phone while driving. Be aware that some staff , especially younger employees or those new to the company, may not feel able to raise concerns for fear of jeopardising their relationship with the company or their manager.

Make Sure That Your Staff Contract and Handbooks Are Up To Date

Using a phone while driving can give rise to gross misconduct and instant dismissal. In order to ensure that you are able to rely on this in circumstances where someone has used the phone while driving we strongly suggest that this is clearly set out in your employment contracts and handbook.

Take Disciplinary Action If Someone Uses Their Phone Whilst Driving

Using a phone while driving for work purposes can give rise to disciplinary proceedings being taken against the employee. This may in turn lead to summary dismissal of that employee. First you should check the employee contract and staff handbook to see if there is a policy and how to conduct and proceedings in circumstances where the employee has breech the policy. You should ensure that you carry out a thorough investigation and check the facts. This may include placing the employee on suspension or removing them from driving duties while the investigation is being done.

You should ensure that the investigation and any subsequent disciplinary proceedings are conducted in  accordance with the company policy.

If you have carried out a thorough investigation the offence may result in the business dismissing the employee.

If you would like us to check your contracts and handbooks or provide advise you in relation to this please call Iain Lock on 01920 463777 or email me at ilock@qandalaw.co.uk