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Mobile computing – some legal issues

Please note the Law may have changed since the publication of article.

In this article we give an insight into some of the major issues that arise. However, there are many more and for further information, you may contact us.

Driving and mobiles

This is clearly a major issue, and there is more to it than one might think in terms of what the legal requirements are?

The first thing to note is that where an employer requires its staff to drive as part and parcel of their job, the car becomes part of the workplace and is therefore covered by the UK Health & Safety legislation.

The employer therefore needs to do a risk assessment of the use of the car, and that risk assessment should cover the risk of using the telephone whilst driving as well as all other risks associated with the type of driving which might be required and the type of vehicle used. The risk assessment in relation to use of the telephone should take account of whether that be a hand-held phone or a hands free kit. The risk, whilst considerably higher with hand held devices (and of course now illegal if done whilst driving) is high for both types of use and therefore employers should make it clear in their policies that mobile telephones should not be used AT ALL whilst driving and that drivers will not be required to use the phone at all whilst driving.

If there is an accident where the driver was on the phone and it is proved that the employer required or encouraged this, then the company is likely to be prosecuted alongside the driver; either for breach of Health & Safety or the causing or permitting offence. It might be surprising for employers to realise that prosecution by the Health & Safety Executive in relation to the lack of a risk assessment or the failure to have appropriate policies in place is a far more serious for the employer than the risk of a fine to the employee for falling foul of the new driving regulations. The fines for breach of Health and Safety are unlimited in the Crown Court and directors can face personal liability for fines, imprisonment, and even disqualification from acting as a director. There will also be the civil claim against the company from any victim of such an accident based upon “vicarious liability”.

Data protection

A lot of confidential stuff is now carried around on mobiles, PC and phones.

The 8th Data Protection Act principle deals with restrictions on transferring personal data outside of the EU/areas with equivalent data protection regimes. If one stores personal information legitimately collected within the EU on a mobile device and then that device is taken outside of the EU/areas with equivalent data protection regimes, that might well constitute a breach of the 8th principle. If this is a distinct possibility, the data collector would do well to cover this issue in the data protection privacy policy subject to which it collects the data in the first place and obtain the opt-in approval of the data subject to any such transfers to other jurisdictions.

Working Time Regulations 1998

There is currently a 48 hour limit on the hours employees can be required to work by their employer each week. This is an average which is calculated over a 17 week period. Employees can opt out of this limit but if they don’t, or if they have opted out and then choose to opt back in, the employer is required to monitor hours worked and ensure that the 48 hour a week limit is not exceeded. Clearly the issue of monitoring is complicated if staff are working away from the office. It is therefore vital in circumstances where staff have not opted out that employers have in place an accurate method of time recording – and that includes working time both in and out of the office and includes travel time if travel forms part of the job.

© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.