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.
Facts
The claimant was the only full-time employee of the respondent, which provided accountancy services. The respondent’s director had also previously been a director of Accountancy MK Ltd, the respondent’s predecessor, which ceased trading when the respondent was set up. The claimant continued performing the same role for the respondent as they had done for the predecessor. They signed a new contract which gave their start date as their first day with the respondent and not the predecessor.
Spyware software was installed on the claimant’s computer by the director, which revealed that the claimant had been browsing sites such as Rightmove, Very and Amazon during working hours. the claimant was then summarily dismissed. The dismissal letter stated that the claimant had been “engaged in private business activities during [her] working hours” and was dismissed because of the “potential impact it could have on the company's reputation and productivity”.
Arguing that this was just an excuse to dismiss them, the claimant brought a claim of unfair dismissal.
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Employment Tribunal (ET)
An issue in this case was the fact there was very little documentation relating to it, and of what there was, much of it was in dispute. This included a set of policies and a code of conduct the respondent provided to the ET, which the claimant denied ever seeing before. Evidence of diary entries and a previous warning letter around the claimant’s performance were also presented by the respondent to the ET.
The ET found that the documents were not given to the claimant at the time the respondent alleged they had been, and the diary entries were created in advance of the ET hearing to support the respondent’s case for dismissal.
The claimant told the ET that they were allowed to use the computer for personal use when there was no work to be done, and that some of the tasks the respondent had found to be personal were related to their work. Whilst they accepted that they had visited Rightmove, Very and Amazon, the claimant said it may have been during their lunch break.
The ET had to decide if the dismissal was for a potentially fair reason. It held that conduct is a potentially fair reason, and using a computer for personal use is potentially a conduct issue. Because there was no prohibition on personal use of the work computer, and the time spent on personal matters was deemed not to be ‘excessive’, the ET held that conduct was not the reason for the dismissal. The real reason for the dismissal was that the respondent had decided to dismiss the claimant prior to them accruing sufficient continuity of service to bring an unfair dismissal claim.
If the reason had been conduct, the respondent would have needed to show that it held the genuine belief in the claimant’s misconduct based on reasonable grounds. However there had been no investigation and no formal hearing was held. The ET found that the dismissal was outside the band of reasonable responses.
The above however would not matter if the employee did not have the required two years’ service to bring an unfair dismissal claim. The ET concluded there had been a transfer of undertakings and therefore they had the required two years’ service.
The claimant was successful in the unfair dismissal claim and was awarded £16,920.00
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