Regan Peggs

The current rules for HGV drivers when it comes using a hand-held mobile phone are exactly the same as those for drivers of any other type of vehicle. However, enforcement is typically more stringent for commercial drivers, with increasingly creative strategies being developed by police to catch offenders - including a recent operation using unmarked HGVs for surveillance.

Those who are caught breaking the law can expect to be prosecuted, with potentially serious consequences. If a driver is taken to court, a disqualification can be imposed; even the fixed penalty of six points and a £200 fine can easily take a professional driver over the point limit set by the most reputable employers.

The rules for hands-free communication are different: using a Bluetooth headset, voice command or a dashboard holder to make and receive calls and messages with a mobile phone is allowed, providing no contact is required with the device. However, drivers using these tools can still be stopped by the police, on the basis of being distracted and therefore not in control of their vehicle.

For many commercial drivers, this risk extends to the use of other terminals, including sat navs and tachographs. While there is no specific offence covering the use of these items, drivers can still face prosecution for careless or dangerous driving if they use them in a way that compromises safety. Similarly, any operator that regularly expects its drivers to use non-essential devices while on the road could potentially be prosecuted under health and safety laws in the event of an accident.

Although possible, criminal prosecution of an employer whose driver is caught using a hand-held mobile phone is unlikely. Of far greater concern for employers is how their response to such a situation can affect their status as a licensed operator.

The Traffic Commissioners require operators to have systems in place to monitor their drivers’ conduct, including taking appropriate steps (such as imposing financial sanctions or requiring attendance of educational courses) when an individual driver breaks the law. If an operator fails to put these systems in place, or if their disciplinary response is insufficient - particularly against repeat offenders or where multiple employees have committed offences - they can be called in for a public inquiry.

A Traffic Commissioner’s public inquiry is an extremely serious matter, with potential outcomes including suspension or even revocation of an operator’s licence (and a ban from obtaining another). The expense and inconvenience caused by a public inquiry far outweighs the effort required to avoid the situation in the first place.

With the potential consequences for employers of their drivers being caught using a mobile phone going far beyond individual prosecution under road traffic law, developing appropriate systems to ensure that they remain within the law should be a priority.

Regan Peggs, director, Regan Peggs Solicitors