help for a friend please

[cowbag]

Hi all

My friends husband who was a bus driver has been dismissed today because of he has been caught by inspector holding his mobile phone, he shown the inspector that he had not received or made any text or calls, the reason he took it out of his pocket was because it vibrated and the only way work can contact the drivers is to call them on mobile.

They have been in contact with ACAS who have said he has a claim for unfair dismissal, and he should write a letter of appeal. I don't think he has a case because I thought it was against the law to hold mobile device whilst in control of a motor vehicle.

I think he should go to his appeal and say sorry and ask to keep in job and promise not to do it again.

Does anyone have any idea of the best way to proceed?

He has worked there for 6 years although the company was taken over 6 months ago.

thanks

[wales01man]

Re: help for a friend please

Its against the law if he picked up his phone with a bus full of passengers and killed some would that be ok he deserves to lose his job

[des8]

Re: help for a friend please

Hi there,
Holding a mobile phone does not appear to be an offence.

STATUTORY INSTRUMENTS2003 No. 2695

ROAD TRAFFIC
The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003
Amendment of the Road Vehicles (Construction and Use) Regulations 1986

2. The Road Vehicles (Construction and Use) Regulations 1986(2) are amended by inserting after regulation 109—“Mobile telephones

110.—(1) No person shall drive a motor vehicle on a road if he is using—

(a)

a hand-held mobile telephone;
Nowhere does it say "holding a mobile" is an offence. The offence is using a mobile. It may be that his contract with the bus company says something different.
ACAS would seem to be correct.

[wales01man]

Re: help for a friend please

if your holding the phone you can be using it?what if the inspector didn't see him hes a professional driver should know the law

[charitynjw]

Re: help for a friend please

Details such as disciplinary offences & procedures are usually included in a contract of employment, or are contained within the statement of particulars of employment, which should have been issued within 2 months of commencement of employment. (it will usually refer to the location where these details can be found, ie the company's intranet, etc)

[des8]

Re: help for a friend please

I just pointed out what the law says.
Actual phone usage can be checked by reference to the carrier.
Holding the phone does not prove usage.
What if it was in his pocket, moved and became uncomfortable. As a distraction it could cause inattention and lead to an accident. Of course he should remove it from his pocket, preferably while stationary. We don't know the circumstances of this incident, we don't know if the vehicle was moving or not, whether it was in service or not and so shouldn't be so ready to leap to condemn.
the law is clear that the offence is using a mobile.

[charitynjw]

Re: help for a friend please

& without the benefit of viewing the contract/particulars, we could speculate 'till the cows come home!

[wales01man]

Re: help for a friend please

so when your driving holding the phone and there is a text showing you could say your not reading it so not using the phone?no offence then having read news reports of drivers talking/texting/reading facebook and playing games on phones while driving and in case being involved in a fatal accident that's ok then?why cant they put the phone away and check it when they finish their journey?

[charitynjw]

Re: help for a friend please

Nowadays, your 'day in court' (or more precisely, ET) for unfair dismissal claims is going to be a £900 gamble; that tends to sharpen one's focus as to the relevant points, I reckon.

[des8]

Re: help for a friend please

so when your driving holding the phone and there is a text showing you could say your not reading it so not using the phone?no offence then having read news reports of drivers talking/texting/reading facebook and playing games on phones while driving and in case being involved in a fatal accident that's ok then?why cant they put the phone away and check it when they finish their journey?

No, it's not all right to use a hands on mobile phone for texting, phoning, reading or anything else, and I have not said it is.
The OP's friend claims not to have been using his device. I, and ACAS apparently, believe the employer has to prove the law was broken by the driver USING, not holding, his phone. I'm pretty sure that reference to the carrier concerned will show if the phone was or was not in use at the relevant time.

Whether or not is worth while risking an ET appeal is a different question. I had the impression (don't know why ) that the OP was referring to an internal appeals process.

[charitynjw]

Re: help for a friend please

No, it's not all right to use a hands on mobile phone for texting, phoning, reading or anything else, and I have not said it is.
The OP's friend claims not to have been using his device. I, and ACAS apparently, believe the employer has to prove the law was broken by the driver USING, not holding, his phone. I'm pretty sure that reference to the carrier concerned will show if the phone was or was not in use at the relevant time.
Did ACAS not suggest mediation?

Whether or not is worth while risking an ET appeal is a different question. I had the impression (don't know why :tinysmile_hmm_t2: ) that the OP was referring to an internal appeals process.
It's all about reasonableness & common sense, wouldn't you say? )

My opinion only.

[FlamingParrot]

Re: help for a friend please

Whether or not is worth while risking an ET appeal is a different question. I had the impression (don't know why :tinysmile_hmm_t2: ) that the OP was referring to an internal appeals process.

The employee will have to follow the internal process before being able to submit a claim to the ET: http://www.acas.org.uk/index.aspx?articleid=1774

If the employee is dissatisfied with the outcome of a disciplinary hearing what can they do?
If an employer is dissatisfied with the decision they should follow the organisation's appeals procedure, putting their appeal in writing and without delay.

^^^^ I've copied the text quoted above from the ACAS site as it is, there appears to be a typo because the heading refers to the EMPLOYEE yet the text below reads EMPLOYER. :noidea:

Nowadays, your 'day in court' (or more precisely, ET) for unfair dismissal claims is going to be a £900 gamble; that tends to sharpen one's focus as to the relevant points, I reckon.

There's always the principle of trying to push the employer for a settlement, which won't cost quite as much as going all the way to the tribunal. Still a bit of a gamble, but not quite as big a gamble. :decision: If you do get a settlement, it would make the £250 fee worth paying. It's also worth noting there are provisions for remission of fees under a number of circumstances, detailed in full here: http://www.legislation.gov.uk/ukdsi/2013/9780111538654 :thumb:

[labman]

Re: help for a friend please

It's difficult, as the police will routinely issue tickets for holding your mobile while driving now. If the offence does not relate to using a mobile, it could well be there is another motoring offence being committed here, or surely the police would not be able to get away with their attitude to it.

I know we're not here to judge, but this is such an emotive issue, I have to say I wholeheartedly agree with that attitude as well. I'm not saying I've never done it - I suspect few (not none) of us could; I can say I've invested in an excellent hands free kit that allows for the receiving and making of calls without touching your phone though. At only £70 odd, it's hard to argue against having such a system. If you don't, or simply can't afford one (we had to save for a while), then turn off your phone or just don't answer it.

[des8]

Re: help for a friend please

[QUOTE=labman;362300], it could well be there is another motoring offence being committed here,

Try "Driving without due care and attention".
The OP's friend was dismissed (we are told) for a different offence "using a mobile phone".

Edit: no he was done for "holding a mobile phone" (corrected before anyone shouted at me:embarassed:

[FlamingParrot]

Re: help for a friend please

I know we're not here to judge, but this is such an emotive issue, I have to say I wholeheartedly agree with that attitude as well. I'm not saying I've never done it - I suspect few (not none) of us could; I can say I've invested in an excellent hands free kit that allows for the receiving and making of calls without touching your phone though. At only £70 odd, it's hard to argue against having such a system. If you don't, or simply can't afford one (we had to save for a while), then turn off your phone or just don't answer it.

The issue here is that the sacked bus driver wasn't making or receiving calls whilst driving, it's a bit like being accused of shoplifting when you haven't stolen anything, you just brought something in from another shop!

If your phone is making you uncomfortable while driving, surely you are allowed to take it out of your pocket, as you would any other object. :ohwell:

My friends husband who was a bus driver has been dismissed today because of he has been caught by inspector holding his mobile phone, he shown the inspector that he had not received or made any text or calls, the reason he took it out of his pocket was because it vibrated and the only way work can contact the drivers is to call them on mobile.