10 June 2011 #Employment
In MacFayden v Flexible Engineered Solutions Ltd ET/2503231/2010, the ET has held that an employee was unfairly dismissed for frequent use of mobile phone at work.
After a disciplinary hearing, the employee was dismissed for gross misconduct which included persistent and long-term disruptive behaviour, insubordination and failure to follow reasonable management instructions. In particular, the employer relied on the employee`s excessive use of his mobile phone and refusing to work overtime.
The tribunal found that the employee`s behaviour did not amount to gross misconduct. The company permitted the use of mobile phones in the workplace, and the staff handbook did not require employees to do overtime. Further, it felt a decision had already been made to dismiss before the disciplinary hearing because the employee was given the option in a prior meeting of resigning or being dismissed.
In addition the tribunal found that the disciplinary process was flawed; the chair of the prior meeting, the disciplinary meeting and a subsequent appeal meeting was the same person.
This case is an example of where an employer failed to deal with problems caused by an employee`s behaviour and attitude. Instead of issuing formal warnings, the employer used those issues as an excuse to dismiss.
The case also serves as a reminder that Employers should have a clear policy on the use of mobile phones in the workplace. If there is not a complete ban, then they should consider setting out when personal use will be permitted e.g. during lunch, for emergencies. Employers should also be aware that there is no general requirement for employees to work overtime and so where employees are required to do so, this obligation should be set out in their employment contracts.