In the case of Lanuszka v Accountancy MK Services Ltd, the Employment Tribunal had to consider whether the alleged misconduct was the real reason for the dismissal.
In the case of Ashe v Claims Equilibrium Club Ltd, the Employment Tribunal had to consider whether a director was constructively dismissed following a breakdown in the relationship between them and a fellow director.
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An employment tribunal (ET) had to consider whether an employee had been unfairly dismissed after she refused to put a work-related app onto her personal phone.
But first, a determination had to be made over her employment status.
The claimant, an Online News Editor, started working for the respondent in 2014. The respondent, an Arabic newspaper, considered the claimant to be self-employed. In 2017 the respondent introduced Viber; software that tracks stories already published to prevent the duplication of articles.
In November 2019 the claimant was told that using the Viber app was compulsory. The claimant objected to this because she would have had to install this on her personal phone and would have been disturbed by a high volume of notifications. Instead, the claimant asked the respondent to provide her with a work phone to install the app. The respondent refused stating that the claimant could just turn off the notifications, however, the claimant did not believe that this was possible.
The respondent then blocked the claimant’s access to their systems so she could not carry out any further work. The claimant raised a grievance alleging that she had been bullied, harassed, and discriminated against because of her race. The respondent replied to state that despite her being self-employed they would hear the grievance as a matter of courtesy, however this did not take place. Instead, they stated that as the claimant refused to install Viber, they had removed her access so she could not work.
The claimant argued that she was an employee and brought claims to the ET for unfair dismissal, notice pay, and holiday pay.
In respect of the claimant’s employment status, the ET found that the claimant was an employee. The employee solely worked for the respondent, had a regular working pattern, received the payment of a monthly retainer, had been provided with a laptop by the respondent who also exercised a sufficient degree of supervision and control over the claimant.
The respondent believed that the claimant was self-employed so did not carry out any investigation, disciplinary procedure, nor did they inform the claimant that a refusal to use the Viber app could result in dismissal. As the ET found that the claimant was an employee, the respondent’s failure to take such action meant that it was a procedurally unfair dismissal. The ET also found that it was substantially unfair because no reasonable employer would dismiss an employee for refusing to put such an intrusive app on their personal phone.
The ET also found that as she had not received any holiday pay, because the respondent incorrectly considered her to be self-employed, she was entitled to holiday pay for the entirety of her employment.
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