The issue of work related phone use is a complex one, the original legislation banning use of a handheld mobile phone whilst driving has by and large proved ineffective, even after the original legislation was given teeth by the ability to add penalty points upon conviction. The legislation in my view is unlikely to significantly reduce drivers using handheld mobile phones, unless the police take positive and active steps to prosecute drivers caught using a handheld phone whilst driving.

The police have always held the view, supported by a number of academic studies, that usage of a phone while driving regardless of whether handheld or hands-free, will result in a distraction to the driver. It is for this reason that the police will routinely seize mobile phones and will investigate phone records, in cases where there has been a fatality or life changing injury as a result of a road traffic accident where use of a phone is a suspected contributory factor.

The involvement of work related calls does put a different slant on the issue, if the police can demonstrate that a driver was taking or receiving a work related call there is a possible prosecution against the employer for aiding and abetting the offence. If phone use is suspected after a serious accident, the police will check to see whether the employer had a policy in place governing use of a phone whilst driving, further was the employer complying with its own policy and monitoring phone usage. This approach is enshrined in the ACPO Investigation of Road Death Manual.

An interesting initiative was developed by the Metropolitan Police, whereby if it was established that a driver stopped for using a phone while driving was engaged in a work-related call, this would result in a uniformed officer visiting the employers office to establish whether the employer has a mobile phone policy or, was failing to monitor its policy on phone use. The intention being to encourage the employer to put in place a policy and monitoring procedure if they did not already have one. In the event that they failed to do so, Health and Safety legislation would be used to prosecute the company.

It is not necessary for an employer to ban mobile phone use while driving, although many now do so, one enterprising company will call its drivers whilst they are driving to see if they answer, in the event they do they will be dismissed.

Provided the company has a mobile phone policy in place and can demonstrate if challenged by the authorities that they are applying it, employers have nothing to fear. Having said this it is inevitable that prosecutions will continue to take place but these do tend to be as a consequence of accidents rather than on the spot enforcement.

It must be remembered that a working mobile phone policy is only a tiny part of the overall picture of managing work-related driving, there have been calls for an outright ban on mobile phone use whether handheld or hands-free, although some employers have adopted this approach, others still perceive a business need to be in contact with employees whilst driving. The important thing when permitting drivers to use mobile phones in a vehicle is to ensure that there are auditable procedures in place and that drivers are positively discouraged from holding conversations when actually in the act of driving. Text messaging is another way of communicating, but drivers attempting to drive when reading a text message or texting is worse than a conversation, as the drivers eyes are taken away from the road ahead. The safest approach is for voicemail messages to be left, the driver stopping routinely to check for messages received; this fulfils a secondary benefit namely requiring a driver to break their journey to combat fatigue.

The Sentencing Guidelines Council have directed that if usage of mobile phone was a contributory factor in a fatal accident, whether hands-free or handheld, this would be regarded as an `aggravating` factor resulting in a longer term of imprisonment for a conviction of a causing death by driving offence. Having said this a recent prosecution of a company director who caused an accident in Warwickshire whilst using a hands-free phone when driving, only resulted in a conviction for careless driving, rather than the more serious charge of causing death by careless driving through use of the hands-free phone.

Notwithstanding the fact that the mobile phone legislation has now been with us for some years, the rarity of prosecutions for serious offences and the apparent `legality` of using a hands-free phone have confused matters for fleet managers.