Posted By Adam Worth
There's a lot of talk about this and I think people are misreading the issue.

1. This isn't really a health and safety issue as such as it's covered by the road traffic act!

2. IMHO the charge of dangerous driving is for driving dangerously! The fact you were on a phone is only an additional point to the charge as you were breaking the law at the time of the offence.

I think driving law is taken far too lightly, if 5.6 per 100,000 people were killed in any of our industries would it be seen as acceptable?

All issues for debate on another forum I think!

Posted By skooter1
Hi Gents, thank you for your comments but I think you have missed the point of my post.

the news of a two year sentence has highlighted to me that very little is said in our H&S Policy, so do I need to amend it so that it has a section on what is now law so that the company is covered, or should I write a separate policy for the above mentioned.

Regards
Skooter1

Posted By Adam Worth
J Knight - Sorry I meant this new legislation not driving policy in general! :) I could have phrased that much better.

I don't think the new guidance really changes anything was my point.

skooter1 I think it's all down to RA and how much detail you feel you need to put.

If you are worried about mitigation, then I suppose you need to show you did all that was reasonably practicable.

Is complying with traffic law enough i suppose is the real question?

Maybe a law boffin can enlighten us all

Posted By J Knight
Hi Martin,

Yes, of course it is the Road Traffic Act, but read my post. What I said is that the Police will involve HSE if they think a failure of management contributed to an injury or death of a person at work in a traffic incident. This is not me making that up, it is true. And HSE will become involved.

Questions which would be asked would be 'why was the person on the phone?'; 'What sort of control did the employer have for the person's phone use?', 'What would the consequences for employee have been if they had refused to use the phone?' and so on. To this extent the Management Regs are involved; there have already been prosecutions of employers for causing deaths of employees at work on the roads, and there will be more,

John

Posted By Martin Forbes
DRB:

That is a different situation completely, when the accident involves a company vehicle, then they are responsible for the person driving the vehicles actions. They have to do a RA as to whether the driver is competent to their own standards to be driving a company vehicle. As they are liable for his actions.

However the situation i was referring is driving a privately owned vehicle on company business. The employer has no responsibility to ensure these drivers comply with basic road traffic law.

Posted By DRB
Martin

Why then does your company have a policy on the use of mobiles?

On another thread you wrote:

"The company i work for, has a ban on mobile phones whilst driving, even with handfree kits.

The exact instructions is upon entering a vehicle, employees are expected to switch off their mobile phones."

Posted By Martin Forbes
Also its not a policy, it's part of a promoting driver awareness campaign. - sorry for the double post.

Posted By Martin Forbes
J Knight:

Yes, i'm aware of that but im delibrately being difficult about this, as it's something im completely against.

Accidents caused by mobile phones are not due to the employer. If its a legal requirement by the police, we shouldnt have to remind our employees to do it, it's up to the police force. I mean dont get me wrong writing a few slides in our driving presentation and reminding employees not to use their phones, i don't have a problem with. It's when you see innocent employers getting prosecuted for not doing it that annoys me.

These employers who have done nothing wrong end up suffering because their employee didnt comply with the law. They havent been negligent as the DVLA has already performed a driver risk assessment, and they haven't a legal responsibility for communicating criminal law to their employees. So why does the book get passed to them.

Courts sideswipe the fact that the DVLA do a poor job in asessing drivers and the police do a poor job in enforcing the law and pass the book to innocent employers who have so much laws to comply with they miss out what up until today was a relatively minor one.

Now answer me this if we have to remind employees not to use their mobile phones whilst driving, shouldn't we then have to remind remind them to stop at a red light? and indicate before turning a corner? and stop at a stop sign?

Posted By Martin Forbes
Yes, like i said i know exactly what your saying, i just refuse to back down on this matter.

Realistically we have no need to perform a Driver Risk Assessment for an employee driving a company car. As the DVLA (Drivery Vehicle Licensing Agency) has already done so. Issuing someone with a licence is saying "this person is a safe and competent driver" if holding a driving licence doesn't legally say this. Then why do we have the DVLA?

That link you provided me im aware of that, and it's an irrelevant issue, (we had a similar prosecution in one of our middle eastern countries cant remember which - funny story there actually) - anyway its a different subject as this persons company pressurised him into driving extensive periods of times, this being the companys fault. However no1 can pressurise you to pick up a phone while driving as its against the law.

To re-iterate what im saying - It is the ultimate responsibility of the police to discourage the use of mobile phones while driving. The fact that an employer can be held responsible is ridiculous. Sure the employer probably should make clear the company policy on phones, and it is best practice to have a company policy, i completely agree. What i disagree with the is the fact that people can get prosecuted for not having one. That's ludicrous.

Anyway, the HASAWA and the MHSW is too open to interpretation and negotiation, safety laws should be set in stone and non negotiable.

I.e: You must have a health and safety policy regarding the use of phones whilst driving or you will be prosecuted.

Not: You may or may not have a health and safety policy in place regarding the use of mobile phones whilst driving, and in the event your employee kills someone we may or may not charge you depending on how well you argue in court.

Posted By Martin Forbes
9-ship:

Come on lets be reasonable. Auto-pilot first of all sprigns to mind secondly its safe to talk whilst flying an aircraft because:

On a car you have 2 feet to the left and 2 feet o the right before you cross into the path of an oncoming car or clip a class verge and land on the roof. On a plane you have well you have as much space to swing left and right as you want really.

A plane doesnt require concentration to keep it at a steady speed, a car does

A plane doesnt require the drivers hands to be on the controls to keep the plane in the air, a car required the drivers hands to be on the wheel to keep the car on the road

Another car can pull out infront of you at any time another plane cannot as aircraft control monitor this and failing that there is TCAS in place

Pedestrians, animals, can be in the way, objects can be obstructing the road, weather conditions could be hazardous. You may have to turn a sharp corner, a car may be overtaking as you come round the corner. None of these hazards exist in an aircraft.

The difference between an aircraft is three is bodys and systems in place to ensure you fly the aircraft safely. However in a car there is not. The safe use of a car relies on 1 thing the person driving it.


The safe use of a plane relies on hundreds of people, from preflight safety checkers, pilots, co-pilots, air traffic controllers, engineers, etc etc.

So i think you were a little bit critical there.

Posted By J Knight
Hi Martin,

As a safety professional you are entitled to take any view you like, but I would suggest that your approach exposes your employer to risk, and isn't necessarily a helpful piece of advice.

We have the DVLA to enforce terms of licensing etc, we have the Police to enforce the RTA, and we have the HSE to act in conjunction with the Police in enforcing breaches of workplace law as they apply to workers on the roads,

John

Posted By DRB
Martin

You've said:

"Anyway, the HASAWA and the MHSW is too open to interpretation and negotiation, safety laws should be set in stone and non negotiable."

You can't really mean this!!! The present approach is for the employer to decide what steps to take to reduce risks to an acceptable level, and to my mind that is what you seem to be advocating in your posts. However your comments above are a counter argument and one that calls for a complete change in health and safety law, not dissimilar to that called for by the EU is their case against the use of SFARP in our law.

Thou shalt do this and thou shalt not do that is never going to work, just give it some thought!

Posted By 9-Ship
Might expand the last sentence of the previous post as a good excuse not to talk to my wife while driving....

Silence is golden...

Posted By Martin Forbes
9-ship:

I now have all the other Q[reference removed] staring at me for laughing out loud in a silent office. . . .

Posted By steve e ashton
Martin,

you write "the new law states, handsfree is unnacceptable". It doesn't. What 'the law' says (and has always said) is that dangerous driving is an offence. It is now being said that if the driver was using a device that may have caused or contributed to the offence, then the penalty will be higher than it used to be.

At least, that's my understanding of what has been announced.

I actually agree with the main point of your argument - it seems odd that an employer should be held to account for an offence committed by an employee under road traffic law - certainly, I wouldn't expect employer prosecution for employee running a red light...

I don't suggest employers should tell their employees not to run a red light because (most) employees don't. (if you know otherwise, you need to take action...) But an awful lot of people who drive for work have unfortunately got into the habit of using 'phones (handheld and/or handsfree. Just look around next time you are standing near a busy junction.

If the employer's policy is clear, and well communicated (and monitored/enforced (how)?) I do not believe that the enforcement agencies will pursue a case, and I am almost certain the courts will not find the employer guilty if he has done all that is reasonably practicable to prevent commission of the offence....

Steve

Posted By Tabs
I think you may all have missed the point here.

The company (or its directors / officers) would probably not be prosecuted under H&S law, but would / could conceivably be convicted for incitement. If there is a company policy (written or practical) to encourage or condone breaking a law, the company would be exposed to a charge of inciting or permitting.

Would it happen? Possibly, if the person being prosecuted tried to use a defence of pressure or threat from the company.

How does a Safety Professional protect the company? By recommending that a policy that makes clear the company's position, be written, published and enforced. It costs nothing, it prejudices nothing, it doesn't even make the Safety Professional look silly (though the lack of one might, if something goes wrong).

How hard is that?

Posted By J Knight
Tabs,

While in general you are probably right, there has been at least one recent prosecution under H&S law by HSE for a death while driving at work. The case involved fatigue, not phone use, but the principle is there, the mechanisms are there and the precedent has been set.

Could also be looking at corporate manslaughter in the right circumstances,

John