What’s your mobile phone policy? Sam Murray-Hinde of law firm Howard Kennedy shares advice for crafting a policy, and putting it into practice
In January, routeone reported that a Traffic Commissioner (TC) had emphasised the need for operators to have written policies for drivers on the use of mobile phones.
In a safety-critical role, having such a policy in place ensures your drivers are aware of the law and comply with it and can guard against you being called before the TC.
Many operators have opted to take a zero-tolerance approach to the use of a mobile phone in the cab, even when the engine is switched off.
A written policy, together with posters which draw attention to the rules, will help ensure that there is no doubt as to the standard of behaviour expected and the approach you will take should a driver breach those rules.
The policy can be relied on in the event you need to take disciplinary action, and goes towards evidencing a fair dismissal, both substantially and procedurally. It is usual for any breach to be viewed as gross misconduct, and drivers should be made aware of this.
Gross misconduct
Conduct is a potentially fair reason for dismissal, and most operators will set out non-exhaustive examples of what will be viewed as misconduct and gross misconduct within their disciplinary procedure.
If your procedure does not refer to mobile phone use, it is sufficient for the written mobile phone policy itself to make the position clear.
Good communication of the policy is paramount, and some operators have taken to including messages and reminders on payslips, as well as putting signs in the cab itself.
Fairness: Was dismissal reasonable?
For a misconduct dismissal to be fair, you will need to show whether in the circumstances (including the size and administrative resources of the business) you acted reasonably in treating it as sufficient reason for dismissal.
In terms of evidence, CCTV footage is hard for a driver to challenge. You then need to show that the driver was aware of the rules, particularly where yours go further than the law requires.
You should also make sure that cases are treated consistently by your management so drivers cannot point to comparators to show that others were not dismissed in similar circumstances.
A dismissal for misconduct will only be fair by law if:
- There was a genuine belief that the driver is guilty of misconduct
- You had reasonable grounds for believing they are guilty
- Most importantly, you carried out as much investigation as was reasonable.
Fair procedure
The ACAS Code of Practice on Disciplinary and Grievance Procedures applies to dismissals for acts of misconduct, so an adjustment of up to 25% may be made to any compensatory award for an unreasonable failure to comply with the Code.
You should therefore ensure that you follow a fair procedure.
