Employers caught by new laws on mobile phones

Laytons, the national firm of Solicitors, are today advising employers that they could face criminal penalties if they fail to prevent employees from using hand-held mobile phones while driving on company business. The new laws which come into force on 1 December make it a criminal offence to use a hand-held mobile phone while driving. Penalties for the driver and employer include a fine of up to 1,000 (2,500 for drivers of goods vehicles, buses or coaches). Provided that a phone can be operated without holding it, then hands-free equipment is not prohibited by the new regulations.

There is nothing new in employers being liable for the acts or omissions of their employees, but many employers will be unaware of the full implications this new law has for them.

íThe new regulations will apply to anyone who causes or permits any other personí to use a hand-held mobile phone while driving and employers will quite clearly be liable if they require employees to use a hand-held phone while drivingí Says Anita Coaster, Partner, Laytons Solicitors.íHowever employers may also be liable if they fail to take active steps to prevent employees from using the phones while driving on company business.

Coasterís advice offers employers two possible options to follow to avoid liability.

íThe safest course would be for employers to actually forbid a hand-held mobile being switched on during any time when employees are driving. Employees who wish to make or receive calls, or send and receive text messages will have to wait until the end of their journey or make a stop in a lay-by before using their hand-held mobile.í Advises Coaster.

íObviously for a number of businesses this may be impracticable and the alternative for employers is to supply employees with a hands-free kit and state that this must be used at all times. Whichever alternative an employer decides to follow they should adopt a written policy on mobile phone use that should be served on each employee.í Continues Coaster íThe policy should stipulate that using a mobile phone hand-held whilst driving is both a disciplinary offence under the Companyís Disciplinary Procedure and a criminal offence with a heavy fine for the employee. The employer must make it clear that as they have set out their policy and guidelines they will not pay any fine for which an employee is liable. Having a written policy along these lines will help to protect the employer from liability.í

Coaster concludes íIf involved in an accident whilst using a mobile phone, then the user already faces the possibility of a prosecution for a more serious road traffic offence. These regulations send a signal to all employers that their potential liability has most definitely been increased. The Department of Transport has indicated that ëwhen a suitable opportunity arisesí the Government intends to introduce legislation to amend Schedule 2 of the Road Traffic Offenders Act 1988 and increase the penalty for the new offence by making it subject to three penalty points and a 60 fixed penalty.í