JMW Solicitors – legal experts and specialists in the coach and bus industry – cover usage of mobile phones while driving and the upcoming Employment Rights Bill
We have received a passenger complaint about one of our drivers using their mobile phone while driving. The driver claimed, during our investigation, that he was using it as a satnav and had picked it up briefly to check a diversion. Is this an offence? If so, do we notify the Traffic Commissioner (TC)?
The offence of using a handheld device while driving is committed the moment a driver holds the device — even if they are not making a call, sending a message or doing anything that involves some form of communication.
- We have received a passenger complaint about one of our drivers using their mobile phone while driving. The driver claimed, during our investigation, that he was using it as a satnav and had picked it up briefly to check a diversion. Is this an offence? If so, do we notify the Traffic Commissioner (TC)?
- What are the implications of the proposed changes to the unfair dismissal qualifying period under the Employment Rights Bill?
If your driver has admitted that he picked up the device for the purpose of using it as a satnav, an offence is likely to have been committed (and would likely have resulted in a fixed penalty notice and/or prosecution had the police or DVSA rather than a passenger witnessed the conduct).
Following the conclusion of your investigation, the driver ought to face disciplinary action (which may include their dismissal).
Your disciplinary policy should provide examples of misconduct, serious misconduct and gross misconduct. Using a handheld device while driving should be one such example.
You should also have a comprehensive handheld device policy which prohibits drivers from using handheld devices while driving.
Likewise, you need a satnav policy which prohibits the use of a mobile phone as a satnav, as satnav applications are not usually coach- and bus-specific and are designed to route a car, and not a large vehicle, to its destination.
These policies should be reviewed and updated to address any gaps or omissions that the incident and your investigation have highlighted.
In terms of notifying the TC, there is an undertaking on your O-Licence requiring the notification of relevant convictions — including fixed penalties.
The use of a mobile phone or other handheld device while driving is one of them. In this instance, however, there has been no conviction or fixed-penalty notice. You are therefore not required to notify the TC.
You may, however, choose to notify the TC of the driver’s conduct so that the driver’s fitness to drive can be considered — usually at a driver conduct hearing.
Given the driver’s details are considered sensitive personal data, you would need to consider your GDPR obligations to make sure that any disclosure of such information has a “lawful basis”.
We usually suggest that such notifications are provided for in the driver’s contract of employment or a policy in your driver handbook or that your data protection officer undertakes a Data Protection Impact Assessment that is then retained on file.
What are the implications of the proposed changes to the unfair dismissal qualifying period under the Employment Rights Bill?
Employees and operators are well used to the general “two years’ service” requirement before an employment tribunal will consider a claim for unfair dismissal.
This means that, generally, an employer can dismiss an employee within the two-year qualifying period without fear of facing an unfair dismissal claim — subject to various exceptions.
However, the government has proposed to remove the two-year qualifying service limit, meaning employees would potentially have the right from day one to bring a claim for unfair dismissal.
The Bill suggests replacing the current two-year qualifying period with a shorter statutory probation period during which employers will be allowed to follow a “lighter touch” dismissal process, thereby limiting the ability of an employee to be successful in a claim for unfair dismissal.
The proposed changes to the unfair dismissal qualifying period could significantly impact operators in the UK.
If this proposal does come into law, operators will need to review and potentially revise their recruitment and induction processes to ensure they are adequately assessing and documenting employee performance during the statutory probation period.
Additionally, contractual arrangements may need to be updated to reflect these changes.
We expect these changes to take effect by autumn 2026.
[Answers by Laura Hadzik, Partner; and Charlotte Beeley, Senior Associate, JMW Solicitors]
