Driving at work: mobiles, licence checks and working time

Posted by Rajiv Joshi on
Can an employee be fairly dismissed for driving whilst using a mobile phone? We look at two contrasting cases, plus developments on driving licence checks and driving as 'working time'.

Employers need to ensure that their Driving at Work, Company Car, and/or Mobile Phone policies are up to date following some recent developments in relation to staff who drive (whether as part of their job or otherwise), particularly in relation to the use of mobile phones whilst driving.

Driving licence checks

Employers may be interested in an updated service from DVLA which took effect on 8 June 2015, allowing them easily to check an employee's or job applicant's driving licence through the DVLA's online database instead of having to apply to DVLA (or using the Electronic Driver Entitlement Checking Service, used by those employing a lot of drivers and who have an agreement with the DVLA). The employee or job applicant must create a 'check code' for the employer, and the employer then has 21 days to view the information held by DVLA. Until now, the process was much more time consuming involving both the employer and employee/job applicant both filling in a form which was sent to DVLA; or checking the individual's paper licence - which in any event might not have been reliable.

Driving to first client counts as 'working time'

An Opinion of the Advocate-General of the European Court of Justice (ECJ) has suggested that time spent travelling to the first and travelling from the last appointment of the day should count as 'working time' for peripatetic workers under the Working Time Directive. The Opinion is not binding, but is often followed by the ECJ, so employers who may be affected should watch out for the final ruling which will be given later this year (Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor).

Dismissals for using mobile phones while driving

Interestingly, these two cases concerning the fairness of dismissals for driving whilst using a mobile phone, which both involved bus companies, were decided at around the same time. In the first case (Ruparell v East London Bus & Coach Co Ltd), Mr Ruparell was a bus driver who was seen holding a mobile phone as he drove away from a bus stand. He had worked for the bus company for nearly 10 years, and the employer's zero tolerance approach towards mobile phone use whilst driving was made clear to him when he was recruited. The employer had circulated rules on the use of mobile phones to employees in 2006 and 2011. A reminder and extension to those rules was circulated in 2013, making it clear that mobile phones should not be used at all in the cab area, even when the bus was stationary. Another reminder was sent in February 2014 and Mr Ruparell signed receipt of this. The rules were also backed up by workplace posters.

In April 2014, Mr Ruparell, who was on a final written warning for other matters, set the alarm on his phone whilst alone on a bus, with the engine off. He fell asleep and awoke to realise that he had missed his scheduled departure. He started the engine and drove off with the phone in his hand. CCTV footage showed him taking both hands off the steering wheel to put the phone in his pocket. He was dismissed for gross misconduct. He issued a claim for unfair dismissal, citing his long service and two other employees who had not been dismissed for a similar offence.

The Employment Tribunal (ET) found that Mr Ruparell's dismissal was fair, being within the range of reasonable responses. The employer had very clearly communicated its mobile phone policy. The incidents of the two other employees were before the employer had tightened up the rules; and other employees had been dismissed. The fact that Mr Ruparell held the phone whilst on the move and took both hands off the wheel was relevant, as well as the safety-critical nature of providing a bus service to the public.

By contrast, in Whitehead v FirstGroup Holdings Ltd, an accountant who had risen to senior management in another bus company was held to have been unfairly dismissed for using his phone whilst driving his own car in the employer's car park. Mr Whitehead had worked for the employer for 36 years with an unblemished record. He said that the incident occurred during a difficult time personally when he had just begun a new role and was also moving house. He had been expecting an important call from the removal company and was driving at less than 10mph.

Mr Whitehead had signed a recent contract stating he would comply with health and safety rules, and knew there was a company car policy. He acknowledged the legislation on driving with a mobile phone, but it was unclear whether it applied to him whilst driving on private land. Mr Whitehead argued the company had not made it clear to him whether its policy related to him driving his own car and not on company business.

Accepting these mitigating circumstances, the ET found Mr Whitehead had been unfairly dismissed. He was contrite and had offered to go on a driving course. He had not been given any copy of the company policy to sign and acknowledge the rules and consequences of breaking them.

Whilst the results were different, and the decisions are at Employment Tribunal level only (so not binding on other ETs), both these cases show how vital it is for employers to have a clearly stated (and repeated) policy on driving with a mobile phone (and any other critical policies), which employees must sign to acknowledge. Any changes must also be very clearly communicated. The cases also demonstrate other factors which will be taken into account, including unblemished service, the role of safety and the potential damage, consistency of treatment, amongst others. With the rapid rise of smartphones, and the ease of texting and internet use in addition to voice calls, employers must ensure their policies, and the communication of them, are up to date.

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Rajiv has experience in a variety of contentious and non-contentious employment law issues.

Rajiv Joshi
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