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It is now the law. If you are caught using a hand-held phone while driving you will get two penalty points (four, if you go to Court).


It is not just holding the phone that will get you in trouble; supporting or cradling it with another body part is enough to get you a fine and points - so putting the phone on loudspeaker and holding it with your hands on the wheel is out!


But are there any employment consequences? In a word, Yes. The Road Traffic Act 2004, (section 20) introduced the provision of 'offences by body corporate', in effect Corporate Liability, if an offence is committed with the consent or connivance or wilful neglect of a director, manager, secretary or other officer of a Company.


For example, say a salesperson is going to a very important client meeting and before the meeting he meets with his boss for instructions on what to say to the client. The meeting goes on longer than expected and the salesperson heads off in his car hoping that he hasn't cut the travel time too fine. Meanwhile back in his office, his boss remembers that he forgot to give some important instructions and rings the employee on his mobile. Now the boss knows that the salesperson doesn't have a hands free kit in the car but rings him anyway. The mobile phone rings and just as the employee picks up the phone a Garda car happens to pull up beside him! In that circumstance the boss could also be prosecuted.


Quite apart from corporate responsibility and even apart from this new Act there is already a duty under Health and Safety legislation to ensure that the employee?s place of work is safe. The 2005 Act specifically says that a car can be a place of work. It follows from that if an employer supplies a mobile phone to an employee who works from or travels around in his/her car (whether supplied by the Company or not) then the car effectively becomes a place of work obliging the employer to ensure that the place of work is safe. This in turn means that the employee must be instructed not to use the phone in the car and must keep it switched off while driving the car and only to make/receive calls while the car is parked in an appropriate and safe place.


Of course, we all know that even if an employee follows the instructions diligently that at some stage the employee is going to forget to switch the phone off, but much more likely he/she will ignore this instruction. The much more preferable solution is for the employer to fit a hands-free kit in the car (while still advising the employee to pull over when making or receiving calls). The latest Bluetooth kit automatically senses the phone when the person gets into the car with his/her phone, so it doesn't matter if the employee forgets to cradle the phone.


Other suggestions include:

1. Setting out in the employment handbook that the employee will be responsible for the payment of all charges in relation to driving offences. The employee will also be liable where such liabilities have been incurred by any other person who the employee has expressly or impliedly given permission to use the car. Employers should therefore ensure that all employees sign the employment handbook to show that they have read the handbook, understand the policies and procedures and are willing to comply with them.


2. Ensuring that contracts of employment refer to possible deductions from employees' remuneration for fines incurred, as outlined in the employment handbook.


As for a hands free wireless or attached headset, there is a legal conundrum - if the headset is connected to the phone either by wire or wirelessly does it become part of the phone and is it "supported" by the ear making the use of them just as illegal as holding the phone to your ear? As yet there is no answer to this question but it is unlikely that the Gardaí will take such a harsh interpretation of the law.


To talk to an employment specialist about any employment matter contact LawPlus Employment today or view our employment law Fixed Fee Service.

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