Posted By Jim Walker
Would that not be "aiding and abetting a criminal offence"?
In a word : NO

Posted By JEB
See Mobile phone article http://www.workplacelaw.net

JEB

Posted By J Knight
We've had a 'no mobile while mobile' policy since 2003, before I joined the Charity, but its widely flouted, and we have started to think about how we can make it work. The next step will be to relaunch the Policy, and also to offer everybody a call-fielding service. The idea is that all the people who are saying 'I can't not take calls while I am driving because of the sheer volume of daily calls I get' will be advised to put their mobiles on divert. The diverted calls will be fielded by an administrator, and triaged. Many of them (from experience) will be RTFM calls, others could be answered by somebody else and so on, so at the end of the trip the manager will ring the administrator and get a list of only those calls which they actually have to deal with. It might just work.

Brett is dead right about the legal position of trying to force people to take calls on the road, and since the new penalties for using hands-held phones 19 people have also had points and a fine for using hands-free, so it's not, in the eyes of the law, a complete answer,

John

Posted By Darren J Fraser
NO an employer cannot enforce the use of a mobile whilst driving

and for the employee to enforce it,

TURN THE BLINKING THING OFF WHEN THEY GET IN THE BLINKING CAR

is the answer

Posted By J Knight
Hi Peter,

Note that 17 people (I said 19 above, but the source I got this from says 17, my mistake) have been penalised since the new law was introduced for using a hands-free phone; the article I got this from says its for not being in proper control of the vehicle, but since the change in the law I can't remember what the actual charge would be. I agree that it would be tricky to prove that the employer was ditrectly involved in this particular offence, but I suppose it could depend on the level and kind of pressure the employer put on the employee. If the employee could demonstrate that they were effectively forced to answer the phone come what may then I suppose it could be a question of causing somebody to drive without exerting proper control over the vehicle, and causing somebody to drive illegally is an offence

John

Posted By J Knight
Hi Peter,

As I say, I see the illegality as causing somebody to drive while unsafe; this may apply to a situation where an employee was under heavy pressure to answer, albeit on hands-free, come what may. Using a hands-free can result in a charge of failing to exercise proper control; presumably an employer could be an accessory to that. I do agree that its very unlikely, but it does seem possible,

John

Posted By Richard Mathews
See below:

2 General duties of employers to their employees

2(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

2(2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular—

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

This is an extract from something called the Health and Safety at Work etc. Act 1974.

Now, looking at this and accepting that someone driving a vehicle for their employer is at work then I think this would be applicable (no doubt someone will correct me if I’m wrong).

So now the question is; is there any reason to believe that using a mobile phone, including hands free, is unsafe. If it is unsafe, and all the research I’ve read draws the conclusion that it is, then requiring an employee to use one whilst driving would not be providing a safe system of work.

Oh by the way, apparently there is another section (3) of this Act that the employer could also be in breach of.

Richard

Posted By John Murgatroyd
Penalty Update - 27 February 2007

New legislation to increase the penalty for using a hand-held phone whilst driving will come into force on 27 February 2007. The current fine of £30 will increase to £60 and three penalty points on your licence. Penalty points can mean higher insurance costs. If you get six points within two years of passing your test, your licence will be revoked and you will need to re-sit the test. If the case goes to court, you could risk a maximum fine of £1,000, which rises to £2,500 for the driver of a bus, coach, or heavy goods vehicle.

A driver can also be prosecuted for using a hands-free device if you are not in proper control of your vehicle when using the device. The penalties are the same - £60 fine and three points on your licence.

If you are an employer you can be prosecuted if you require employees to make or receive mobile calls while driving. It is an offence to cause or permit the use of a hand-held mobile phone when driving. It is also an offence to cause or permit a driver not to have proper control of a vehicle.

Callers also play an important role in keeping the roads safe. If the person you are speaking to is driving, please terminate the call and arrange to speak to them later.

Why are the penalties going up?

It is hard to do two things at once and research has shown that if you are using a mobile phone whilst driving, you are four times more likely to have a crash.
In fact, if you use any type of mobile be it hands free or hands held, your reaction times are worse than if you were driving under the influence of alcohol. Tests have shown that reaction times for drivers using a hand-held phone slows reactions by 50% when compared to normal driving and by 30% when compared to being drunk (Direct Line Mobile Phone Report 2002).
The use of a mobile phone often involves distractions which could be visual, auditory, mental or physical (Direct Line Mobile Phone Report 2002).
Even if you're a careful driver, it's easy to be distracted by a phone call or text message - and that split second lapse in concentration could result in a crash.
Direct Line Mobile Phone Report 2002 summary.
Are there any exceptions?

A driver may call 999 or 112 in response to a genuine emergency.
Two-way radios are not covered by this offence but other devices for sending or receiving data are included if they are held while driving, i.e a PDA, Blackberry or similar device.
A multi-media campaign will be starting on 22 January to support the increase in penalties. Activity will include TV, national press, radio and online advertising on key sites. In addition to this, there will be continued PR work with employers, professional bodies, the Police and Road Safety Officers.

Road Safety Officers will also be active in promoting the campaign in their local areas.

Posted By Kieran J Duignan
On the strictly legalistic question of the borderline, case law on occupational stress applies. Accordingly, Peter is closest to the mark when he refers to the driver's discretion, either in general or at the time of a particular call, in response to 'forced' use of mobile phones while driving.

In addition to the specific law on control of a vehicle, the matter of answering the phone when driving is subject to the Management of Health and Safety at Work Regulations 1999, in terms of the level of stress arising from pressure from an employer to answer the phone when driving.

To the extent that any employer experiences excessive stress AND brings this to the attention of his/her employer, the judgment of the Court of Appeal (2007 EWCA Civ. 70) obliges the employer to negotiate appropriate adaptation of the employee's workload. In this instance, the appropriate adapation of the workload is to withdraw any pressure by the employer to answer a phone while driving, unless the employer has reason to believe that he/she can manage the pressure without undue stress.

In this particular judgment, the Court of Appeal confronted very, very forcefully the ploy of an international corporation which attempted to counter 14 pleas of an overstressed employee, and a suicide attempt, with the offer of a 'counselling' service. The C of A strongly and unequivocally kicked out the employer's claim on the grounds that no counselling could effectively reduce her workload. The same reasoning clearly applies to any stress arising from the actions of an employer attempting to 'force' an employee to answer phonecalls while driving.

Posted By J Knight
HI,

Pity Peter has wiothdrawn, because I agree that it should be at the driver's discretion; the issue surely is if the driver feels unable to exercise that discretion for fear of the consequences. That, in my view, could be where the employer would be complicit.

Our Co Secy, who is a lawyer, imposed our own no mobile while mobile policy as a consequence of his fears that an employer could be held to have contributed in a situation involving use of phones, hands-free as well as hands-held,

John

Posted By Ken Taylor
So the employer can ask the employee to answer using the hands-free if it is safe to do so.

Posted By Dan dan
Ive had this issue myself,

I did initially use a blue tooth - but these gave me "hot ear" and subsequent ear aches. We have had guys tape a hodler onto the dash and use the speaker phone facility - but have to raise thier voices to be heard through thier mic. I mysel on teh other had advise all our staff before departing taht i am going out and will therefore be incomunicado until such times I have landed at my required destination. I have also left a suitable message on my phone saying that i am currently unavailable as I may be in transit so leave a message and I will contact them. It works

Posted By John Murgatroyd
As a final comment:

Ignoring the legality.
Since there has been a whole load of research into the ability of drivers to concentrate, drive properly and safely, and answer a phone , all of which have come to the (understandable) conclusion that the majority cannot do the lot together, you have to ask yourself if you can stand the prison sentence you WILL get if you try to do the lot and kill someone doing it. Not to mention the financial destitution of being clobbered in a civil case.

What some seem to be saying is that their right to talk takes precedence on another persons right to live ?

Posted By Mike Miller
Roger

All the answers given are of course correct from a legal stand point. However let us not over look the possibility of bullying, harassment and intimidation. If an employee feels threatened and fears for his job because say he may be on probation or the person instructing him is just a corporate bully, then all the legislation in the world will not help that person. I am not saying that this is the case because I don't know but the person insisting that the phone is answered whilst driving is either very ignorant of the law, very stupid or corporately dangerous.

The answer would be to challenge this person directly with the letter of the law but this may lead to an untenable position in the company. However if corporate bullying is the problem then one may argue that the position is already untenable and it may be time to move on.

Just wanted to put another slant on things! As the reasons were not so clear.

regards

Posted By Kieran J Duignan
Mike's observation 'all the legislation in the world will not help that person' highlights the significance of the practical implications of two factors.

One is how HR and medical professionals face this issue almost daily in relation to illegal behaviour of managers whom they are expected to publicly support. Some do so with integrity, making crystal clear the boundaries of their support for management. I have worked closely with one Chief Medical Officer who several times appeared in court as a witness against management (including his own line manager, the HR Director) and for employees who claimed damages precisely for the bullying and harassment Mike refers to.

The other is the value for safety professionals in learning more about employment law at impacts on their work: boundaries between safety and health legislation and other areas of employment law are increasingly outdated as work become a 365/24/7 phenomenon and systems of knowledge management challenge the validity of twentieth-century boundaries between HR and OSH. While professional institutes may find such boundaries between the disciplines useful for their own purposes, neither the law nor those in judicial roles who administer it in courts do in administering laws that apply to people at work.

Posted By Kieran J Duignan
In response to Dave's question, 'How would that stand up in court?', the answer depends on
a. whether there is a criminal or a civil claim
b. what the actual terms of a charge is

(b) is illustrated by the fact that PUWER 1998 is another relevant piece of legislation. The ACOP for these regs explicitly states that an ergonomic risk assessment should be conducted of work equipment. As a vehicle driven as part of work is work equipment, a competent ergonomic risk assessment specifies any risks to driver or members of the public arising from any use of telephone equipment in a vehicle by a driver while driving.

Increasingly, safety ergonomists are being commissioned by law-compliant employers to provide such ergonomic risk assessments (whose scope includes musculo-skeletal risks as well as risks of collision and of stress).