Unfair dismissal resulting from use of mobile telephone given to employee

Introduction

It is often the case that an employer will believe that legal representation will get them out of any situation even though they have acted disgracefully with regards to disciplinary procedures. Although the Statutory Dismissal and Disciplinary procedures have now been replaced by the ACAS guidelines, employers still have a duty to follow a fair procedure when dismissing an employee.

It is also the case that the legal representative may present a defence that may appear convincing, but which in the face of balanced legal argument may fall flat. This is a waste of the client’s money and brings into focus the lawyers duty to assess and advise the client of the cost/benefit of pursuing legal arguments that are destined, ultimately, to fail.

Case Summary

The Claimant aged 58, worked for the Respondent for over seven years as a Driver. Approximately two years into his employment, the Claimant was given a mobile phone by the Respondent to use whilst at work. The Claimant was given no guidance, in writing or otherwise, with respect to his use of the phone.

After five years of usage of the mobile phone, the Claimant was summarily dismissed.

The Employment Tribunal had to decide whether there was a potentially fair reason for dismissal. If the reason was fair, the Tribunal would then go on to consider whether that dismissal was fair or unfair in accordance to Section 98(4) of the Employment Rights Act 1998.

As suggested above, the Respondent had given the Claimant any guidelines with regards to the usage of the phone. Despite this, they were angry (all of a sudden after 5 years!) that the phone bills reflected private use.

As an emotional rather than considered response the Respondent called the Claimant into a meeting at which he was dismissed on the grounds of dishonesty.

The submission to the Tribunal by Gary McKetty, acting for the Claimant, was to challenge how an employer (the Respondent) could justify dismissing an employee, when, over a period of 5 years, the employer had neither monitored the Claimant’s use of the phone nor provided him with any parameters to limit his use. The result was that the Claimant believed that he was permitted to use the phone to make private calls (as well as calls relating to work).

The Respondent’s defence argued that the Claimant was guilty of deception, theft, and practically every evil known to mankind.

The Respondent’s legal representative attempted to bully and intimidate the Claimant into agreeing that he had stolen money from the Respondent. As well as this, the Respondent’s legal representative argued that the Claimant should be responsible for paying the legal cost for the 2 day hearing.

The Claimant was intimidated. He admitted to calling his elderly mother in Scotland every day during his lunch breaks, and he accepted that these calls had inflated the telephone bill to over £500.00.

It was argued on behalf of the Claimant, that as the Respondent had paid the mobile bills without question over a five year period, it could not be reasonable for the Respondent to argue that the Claimant had committed an act of misconduct.

As there was no genuine disciplinary procedure in force it was further argued that the decision to dismiss on such grounds was woefully defective. The Claimant had never had the opportunity to defend himself. He was not even allowed to appeal against the dismissal.

Compensation/Award

The decision of the Tribunal was unanimously in favour of the Claimant.

The Claimant’s basic award was £2,625.00.

The Respondent were further ordered to pay a compensatory award in the sum of £56,200.00.