Can You Fairly Dismiss an Employee for Refusing to Download a Work-Related App?
Thursday 7th September 2023
The Employment Tribunal considered whether an employee had been unfairly dismissed for refusing to put a work app on her personal mobile phone in Alsnih v Al Quds Al-Arabi Publishing & Advertising.
Facts
Alsnih worked for the Respondent as a freelance journalist. Due to the volume of news stories published each day, the Respondent introduced ‘Viber’, an online platform which could track the articles submitted to avoid duplication and flag any sensitive topics which needed review by a supervisor. Use of Viber wasn’t compulsory but, after submitting several duplicated articles, the Claimant was told to download the app.
The Claimant objected to having the app on her personal phone due to the volume of notifications throughout the day and night which prevented her from ‘switching off’ outside of work. The Respondent refused to provide a work phone as the Claimant was a freelancer and told the Claimant to buy herself a separate phone to use the app.
The Claimant continued to refuse to download the app and was blocked from the Respondent’s systems on 8 January 2020. On 13 January 2020, the Claimant submitted a grievance alleging bullying, harassment and race discrimination. Her appointment was terminated on 6 February 2020. The Claimant subsequently brought an unfair dismissal claim, as well as claims for breach of contract, unlawful deductions from wages and unpaid holiday pay.
The Employment Tribunal decided that the Claimant was in fact an employee rather than a self-employed freelancer. It decided that the dismissal was procedurally unfair as no fair process had been followed, which was due to the Respondent erroneously believing the Claimant was self-employed. In addition, the decision to dismiss did not fall in the ‘reasonable band of responses’. It was unreasonable of the Respondent to dismiss an employee for refusing an intrusive app on her personal phone without first considering alternative solutions e.g., providing a work phone or downloading the app onto her laptop.
The Claimant was awarded almost £20,000 for unfair dismissal, including a 25% uplift for failure to follow the Acas Code of Practice. She was also awarded a further £12,000 for her claims of breach of contract, unpaid holiday pay and unlawful deductions from wages.
Comment
This case highlights to employers the importance of following best practice and to follow a fair procedure when carrying out dismissals, regardless of what they believe to be the status of their staff.
It is also an important reminder to be cautious of anything which blurs the line between employees work and home lives. If employers do provide a work phone, it could come with the expectation that employees will monitor notifications outside of their normal working hours which may make it reasonable for an employee to refuse.
It is possible that a legal right to ‘disconnect’ may soon be proposed to Parliament. The proposed law could introduce a right for workers not to be contacted outside of their normal working hours. There’s no indication of when or if this will move forward but is an important topic for employers to be aware of.
