An employment tribunal has ruled that an employee who refused to install a work app on her personal phone was unfairly dismissed. The installation of the app would have left the journalist unable to separate her work life and her home life, something she resisted against by refusing to have the app installed.
Depending on an employee’s employment status, different rules apply regarding whether a dismissal can be considered unfair. As an employee of a company, you must have worked for your employer for at least two years.
Furthermore, according to ACAS, it may also be unfair dismissal if the following apply:
- there was no fair reason for the dismissal
- the reason was not enough to justify dismissing them
- the employer did not follow a fair procedure
While it was initially thought that the claimant in this case was a self-employed freelancer, it later turned out that she was an employee of the company. Keep reading to learn more about this case and the lessons that can be learned when it comes to unfair dismissal for employers and employees alike.
Background
The claimant, Razan Alsnih, worked as an Online News Editor for the respondent, Al Quds Al-Arabi Publishing & Advertising, an Arabic newspaper which considers itself similar in style to The Guardian. The company asked the claimant to download an app on her personal phone after it became impossible for them to personally review every article before publication, given they were publishing at least 100 articles per day. They also had concerns that she was duplicating articles which had been published by colleagues either the previous day or shortly beforehand.
As a result, the company introduced an app called Viber which enabled them to track what articles were being published as well as to avoid replication of them. While this was not initially mandatory, the respondent made it mandatory from November 2019, 2 years after it had been first introduced.
The claimant resisted against the idea of having the app installed on her personal mobile phone. She claimed that the notifications were disruptive and intrusive on her personal life. She asked to be provided with a work phone but this was rejected. She was informed that she could mute notifications, however she did not see this as acceptable as it would flash up on her screen and interrupt her calls and messages between friends and family.
Alternatively, she was told that she could buy her own work phone. The company would not buy her one as she was deemed to be a freelancer. The claimant continued to refuse to install the app on her phone, leading to the respondent blocking her from their system. This was blamed on the claimant’s failure to use Viber.
The claimant was dismissed by the company in February 2020 after the claimant raised a grievance alleging bullying, harassment and race discrimination by the Editor in Chief Ms Aloul, who was the claimant’s supervisor.
The claimant then brought claims for breach of contract, unlawful deductions from wages and unpaid holiday pay. In this article, we will be focusing on the claim for unfair dismissal only.
Decision
The employment tribunal decided that the claimant was dismissed due to her refusal to download the Viber app on her phone.
Her dismissal was deemed procedurally unfair, given that no investigation took place prior to the final decision regarding the claimant’s dismissal.
But what was the legal basis for why the dismissal was deemed unfair? The test as to whether something can be classed as unfair dismissal is laid out in Section 98 of the Employment Rights Act 1996.
The relevant case law for testing whether a dismissal can be deemed reasonable can be found in British Home Stores v Burchell (1978), which has three stages:
- did the respondents genuinely believe the claimant was guilty of the alleged misconduct?
The tribunal found that yes, the respondent did.
- did they hold that belief on reasonable grounds?
The Tribunal found that the belief was not held on reasonable grounds, as the employer did not conduct a thorough investigation, as well as what the claimant was saying and why. They failed to consider adequately the interference the installation of Viber could have on the Claimant’s private life and alternative solutions.
- did they carry out a proper and adequate investigation?
The tribunal found that the respondent did not carry out a proper and adequate investigation. Nor did they take disciplinary action against the claimant prior to dismissing her. While the claimant knew that her employer wanted her to use Viber, it was never made clear to her that her job was on the line if she refused to use it. However, the respondent claimed that there was no need for an investigation because the nature of the alleged misconduct was never in question.
Due to not meeting the requirements for the above, the Tribunal held that the respondent failed the Burchdell test used for unfair dismissal cases.
While the claimant wished for reinstatement, the Tribunal held that this was not possible due to the breakdown in relations between the employee and her supervisor, Ms Aloul. The claimant was awarded £20,000 for the unfair dismissal, as well as an uplift of 25% for the employer’s failure to comply with the ACAS Code of Practice on Discipline and Grievance.
Further, the tribunal also awarded the claimant with £12,000 for breach of contract, unlawful deductions from wages and unpaid holiday pay.
Our thoughts
This case provides a number of lessons and reminders when it comes to an employer’s relationship with their employee.
Firstly, employers should be well aware of the employment status of their employees. In this case, while both the employer and employee believed that the claimant was freelance, they were in fact an employee. The employer in this case may have acted differently when it came to their dismissal if they had known Alsinh was an employee.
Finally, employers should also learn the lesson of being flexible towards their employers. The employer in this instance could have made a number of adjustments instead of forcing the claimant to download the Viber app on her phone. Possible solutions could have included offering the employee a work phone or installing the app on her work laptop. If the claimant continued to refuse to use the app in such a scenario, the respondent may have had a better case for fair dismissal providing they followed the correct procedure.
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