Employers typically have policies stating hand-held mobiles should not be used when driving. Organisations also often provide vehicles with bluetooth (hands-free) technology.

This begs the question:

Will an employee and/or their employer be liable if the worker has an accident while using a hands-free set?

Using a hands-free kit is lawful. However, this does not mean employees and employers will be completely immune from prosecution where hands-free kits are used…

Unsurprisingly, road users cannot use a hand-held phone when driving. In fact, it’s illegal to so much as hold a mobile when driving, never mind text or access the internet. Clearly its important those in control of vehicles are attentive and concentrate on driving. However, using a mobile with a hands-free kit is not currently prohibited.

Drivers though can still be distracted when hands-free. Indeed, research suggests it’s not just the loss of dexterity in using a hand-held phone that makes accidents more likely because talking is also a distraction!

Studies show the risk of being involved in a collision is four times higher when using a hand-held or hands-free phone than when not using one.

Employees may still be prosecuted when hands-free if they don’t have proper control of the vehicle (careless or dangerous driving under the Road Traffic Act (RTA) 1988). Using a mobile may also be an ‘aggravating factor’ showing deliberate and dangerous behaviour by the driver. It could justify a tougher sentence.

Things employers need consider

Its very clear driving under the influence of distractions is not advisable and against the law.

When the driver works under a contract of employment there’s also a duty of care imposed on the employer by the Health & Safety at Work etc. Act (HSWA) 1974.

While road traffic law takes priority over the HSWA, if the employee has been involved in an accident owing to factors controlled by the employer then the Police or Health & Safety Executive may make enquiries and consider a prosecution under Health & Safety law.

Employers are expected to make ‘suitable and sufficient risk assessments’ and consider what reasonably practicable control measures can be taken to reduce risks.

Employers should also be aware of the Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003. They apply to anyone who causes or permits someone to use a hand-held mobile phone while driving. It is generally thought employers will not be liable just because they provide a phone or call an employee who’s driving.

But employers will probably be liable if they require their employees to use hand-held phones while driving. Employers may also be liable if they don’t ban drivers from using hand-held phones on company business.

Employers might therefore consider whether it is safest to ban the use of phones altogether whether hand-held or hands-free. Many employers already do so. Indeed, it’s far safer to simply not use any phone while driving and as the Road Traffic Act 1988 suggests and Highway Code says “find a safe place to stop first”.