How many times have you seen an accident or near-miss caused by a driver with a mobile phone clamped to their ear? Last Monday (1 December), under the Road Vehicles (Construction and Use) (Amendment) (No.4) Regulations 2003, it became a criminal offence to use a hand-held mobile phone or similar device while driving.

Employers who require employees to use hand-held equipment while driving, or do not prohibit its use, could also commit an offence as it is unlawful to cause or permit another person to drive while using such devices.

The offence carries a £30 fixed penalty or up to £1,000 on conviction in court and £2,500 for drivers of goods vehicles, buses or coaches. There are plans to increase the fixed penalty to £60 and to make the offence subject to three penalty points.

It is surprising that there has been no legislation outlawing this before. At least 35 other countries have already introduced a ban. In Japan, the use of hand-held phones by drivers was prohibited in 1999. In the 12 months following the ban there were less than half the traffic accidents and injuries involving mobile phone use and there were 20 per cent fewer fatalities.

A phone or device will be treated as hand-held if it is held at some point during the course of making or receiving a call or performing any other “interactive communication function by transmitting and receiving data”. Certain two-way radios are not covered.

Something to be noted for the literal minded is that tucking the phone between your shoulder and ear (“look, no hands”) will not be allowed.

Road drivers of all motor vehicles (including motorbikes) are covered. Cyclists are not. ‘Driving’ covers waiting at traffic lights or other delays when you might move on after a short period. If you were stuck in a major jam and had switched your engine off, you would not be driving and calls could probably be made.

Those supervising a provisional licence-holder cannot use hand-held equipment while the provisional licence-holder is driving. There is no offence if you are calling the emergency services on 999 or 112 (the single European emergency number) in response to a genuine emergency and it is unsafe or impracticable to stop driving to make the call.

Hands-free equipment is still allowed. Pushing buttons on a phone while it is in a cradle or pushing buttons on the steering wheel is probably not prohibited, provided you do not pick up the equipment. Using a head-set with a button on the wire may also be acceptable, but this is unclear. However, even drivers using hands-free equipment can be prosecuted for failing to have proper control of the vehicle and be charged with careless or dangerous driving.

In addition to liability under the regulations, employers may be vicariously liable if an employee causes an accident while driving on business. Employers are also obliged to provide a safe system of work and to do what they reasonably can to ensure the safety of staff and others.

Employers need to provide clear guidance on use of mobiles and similar devices while driving. Employees should be prohibited from using hand-held equipment. It is safest to ban using hands-free equipment too.

Many businesses have introduced an outright ban, but employers have to balance the need to contact staff against the safety risk in making and receiving calls while driving.

If hands-free equipment is used, a risk assessment should be carried out and guidance given on safe use. Appropriate hands-free kits should be provided and, if employees use their own, its standard should be checked. Employers could insist that phones are switched off or diverted to voicemail while driving and that outgoing calls should only be made when safely parked. If incoming calls are essential, they should be brief and callers told that the recipient is driving. It is safest if drivers let the phone ring and call back later. Breach of policy on hands-free equipment should be a disciplinary offence and compliance with policy monitored.