Employee Wins Over £30,000 in Unfair Dismissal Claim After Being Sacked For Refusing to Download Work-Related app (R Alsnih v Al Quds Al-Arabi Publishing and Advertising)
In the case of R Alsnih v Al Quds Al-Arabi Publishing and Advertising, a female employee was awarded over £30,000 after being dismissed by their employer for refusing to download a work-related app onto their phone.
The Facts in R Alsnih v Al Quds Al-Arabi Publishing and Advertising
Ms. Alsnih (“The Claimant”) commenced employment with Al Quds Al-Arabi Publishing and Advertising (“The Respondent”) as a Social Media Assistant on 14 February 2014. In around 2016, she was made Online News Editor.
The Claimant argued she had employee status which was contested by the Respondent. The company maintained she was employed on a self-employed freelance basis.
During the course of her employment, the Claimant argued that:
- she was an employee rather than self-employed,
- she was dismissed for refusing to install the Viber app on her phone,
- she was not subject to a fair procedure before being dismissed.
The Viber Incident
In 2006, Al Quds Al-Arabi introduced its online function and in 2017, they introduced the Viber internet platform for staff to use. However, this was not mandatory.
In around November 2019, the Claimant was instructed by the Respondent to download Viber onto her personal mobile phone. However, the Claimant objected to having the app on her mobile as it increased the volume of notifications during the day and night. This prevented her from ‘switching off’ from the workplace.
She requested a work mobile phone which the Respondent refused and argued that she was a freelancer, not an employee. Hence, she would need to pay for her own separate phone for work. The Claimant had also suggested downloading the app onto her laptop instead, but this was never actioned by the Respondent.
On 8 January 2020, the Respondent blocked the claimant’s access to their system for refusing to use the Viber app on her personal mobile phone. Subsequently, on 13 January 2020, the Claimant raised a grievance arguing that she had been bullied, harassed, and victimised. The claim also cited race discrimination.
The Claimant’s employment was terminated on 6 February 2020 for misconduct, as she refused to use the Viber app, without any formal disciplinary hearing. Following the termination of her employment, the Claimant brought a number of claims including ordinary unfair dismissal, notice pay, holiday pay and pay arrears.
The Decision of the Employment Tribunal
The employment tribunal found in favour of the Claimant finding she had been unfairly dismissed from Al Quds Al-Arabi publishing. They rejected the argument of the Respondent that she was a freelance contractor rather than an Al Quds Al-Arabi employee based on the usual tests for establishing employee status.
Additionally, they found that the Respondent had failed to follow a fair process before dismissing the Claimant. She was awarded almost £20,000 for unfair dismissal, which included a 25% uplift for a failure to follow the ACAS Code of Practice. She was also awarded a further £12,000 in relation to her claims for breach of contract, unpaid holiday pay and unlawful deduction from her wages.
The tribunal found that the procedural failings in not holding a formal investigation to enable the Claimant to offer up a defence, meant the respondent’s mind was already made up. The dismissal, therefore, was unfair in the way it was carried out.
Our Lawyers View
Steve Norton, lawyer at Redmans, says: “Once again, an employer has attempted to avoid having to use a fair procedure to allow due process before dismissing an employee. Moreover, they attempted to argue she was a freelancer to make it difficult for her to pursue a claim for unfair dismissal in an employment tribunal.
The other worrying aspect of these kinds of claims is how difficult it has become to achieve a manageable work-life balance. The employer in this case even refused to provide a work phone or even install the app on the employee’s work laptop. This may be, as some have argued, a good reason for the government to bring in a legal right to ‘disconnect’ from the workplace for reasons of health and wellbeing.”