Employers to be Liable for Employees Who Drive While Using Mobile Phones

An Article by N B Barnett, Employment Lawyer

On 1 December 2003, the Government made the use by drivers of hand-held mobile phones and similar communication devices unlawful. Under a new provision inserted into the Road Vehicles (Construction and Use) Regulations 1986, it will be a criminal offence for anyone to drive a motor vehicle while using a hand-held telephone or a similar device (other than a two-way radio) which performs an interactive communication function by transmitting and receiving data.

Since the new offence applies to hand-held devices, a driver will not be liable provided that the phone is operated without being held. Use of hands-free equipment is not prohibited, which means that pushing buttons on a phone while it is in a cradle or on the steering wheel of a car or the handlebars of a motorbike is not covered. Nor will the use of hand-held equipment in a stationary motor vehicle be an offence.

Those in breach face a £30 fixed penalty or a fine of up to £1,000 on conviction in court (£2,500 for drivers of goods vehicles, buses or coaches). In addition, drivers will continue to risk prosecution for the more serious offence of failure to have proper control of their vehicles if they use hands-free phones when driving. In the future, the Department of Transport intends to increase the penalty by making those in breach subject to 3 penalty points and a £60 fixed penalty.

The new provisions will also affect employers. By virtue of the newly inserted Reg 110(2) of the 1986 Regulations, ‘anyone who causes or permits any other person’ to use a hand-held mobile phone while driving will be liable to the fines mentioned above. Although the Department of Transport considers that employers would not be liable simply because they have supplied a telephone or phone an employee who is driving, they are likely to be liable if they require their employees to use a hand-held phone while driving. They may also be liable, in the Department’s view, if they fail to forbid employees to use such phones while driving on company business.

Published on 08/07/2008