MacFadyen v Flexible Engineered Solutions Ltd ET/2503231/2010

Date added: 8 June 2011

unfair dismissal | personal mobile phone use | refusal to work overtime

This case involves an employer that, rather than deal with problems with an employee's behaviour and attitude by giving him a series of warnings, used them as an excuse to dismiss him. 

Practical tips

Employers should have a clear policy on the use of personal mobile phones in the workplace. If employers do not place an outright ban on employees using mobile phones during working hours, they may wish to set out when personal use will be allowed (for example, during breaks or in the case of an emergency). 

There is no general requirement for employees to work overtime when asked to do so by their employer. Employees can be required to work overtime only if this is provided for in their contract of employment. 

Since 2005, Mr MacFadyen had worked as a fitter for Flexible Engineered Solutions Ltd, a small employer with around 20 employees. Employees were allowed to use their mobile phones in the workplace and Mr MacFadyen said that he often did so to do work-related calculations, but also to receive phone calls from his mother. He did a lot of overtime when the company had a lot of work on. The company's staff handbook does not require employees to do overtime. 

In 2009, the company's management noticed a serious change in Mr MacFadyen's attitude to his work after a new workshop manager, Mr Poynter, was appointed. This change in behaviour seems to have been prompted by Mr MacFadyen's resentment at being passed over for the manager's job. Mr MacFadyen felt that Mr Poynter had been appointed only because he was a friend of Mr Latimer, one of the company's directors. 

Issues about Mr MacFadyen's behaviour that arose after Mr Poynter was appointed included accusations that he had: 

  • taken a half-day's holiday without permission, despite being told when he was leaving not to go by Mr Anderson, the joint company owner; and
  • sent an inappropriate text to Mr Anderson on a work-related night out complaining about the failure of company directors to make an appearance at the social event, with one of Mr MacFadyen's colleagues allegedly having to take the phone off him to stop him from sending more texts. 

Mr MacFadyen had also been given an unofficial warning about his poor attitude and lack of respect for his colleagues, and been the subject of a complaint about his attitude in an email from Mr Poynter to the directors. 

Mr MacFadyen began to refuse to do overtime. When Mr Anderson asked him why he would not do overtime, Mr MacFadyen responded that, although he had always done extra hours in the past, he was not required to do overtime. He also told a colleague that he had a new puppy that had had an accident and he could not leave it unsupervised. 

It was clear that the atmosphere between Mr Poynter and the other workers had deteriorated. Mr Poynter made complaints about Mr MacFadyen's alleged constant use of his mobile phone. This problem culminated in an argument during which there was "shouting and swearing" and Mr MacFadyen was asked to leave the premises. Mr MacFadyen was suspended and he later claimed that he was given the option in a meeting (attended by, among others, Mr Oliphant (another director) of resigning with "a good reference and a settlement" or being dismissed for gross misconduct. 

A disciplinary hearing was held by Mr Oliphant. Mr MacFadyen said that, although he believed that he had been promised the job and was disappointed, he had been harassed by Mr Poynter. He gave the example of Mr Poynter following him around and calling him "huffy". Reference was also made to Mr MacFadyen's refusal to work overtime, with his explanation being that his puppy had been unwell. At the end of the hearing, Mr Oliphant indicated that he was going to make further enquiries, while Mr MacFadyen stressed that he had not been given any formal warnings and should be allowed the opportunity to improve his behaviour. 

After a further meeting with the directors, Mr Oliphant decided that Mr MacFadyen should be dismissed for the gross misconduct of persistent and long-term disruptive behaviour, insubordination and failure to follow reasonable management instructions. Mr Oliphant heard the appeal and upheld his original decision to dismiss Mr MacFadyen. 

The employment tribunal held that Mr MacFadyen's behaviour did not constitute gross misconduct. It referred particularly to Mr MacFadyen's frequent use of his mobile phone at work as an important part of the company's justification for his dismissal. The tribunal pointed out that the company permitted the use of mobile phones in the workplace. The tribunal felt that the management had already taken the decision to dismiss him before the disciplinary hearing, citing the option that Mr MacFadyen was given of resigning or being dismissed. 

In addition, the tribunal found the company's disciplinary process to have been procedurally flawed. Mr Oliphant had been at the meeting when Mr MacFadyen was asked if he would like to resign or be dismissed and had gone on to chair both the disciplinary hearing and disciplinary appeal hearing. The tribunal thought that, by the time of the appeal, it was "inconceivable" that Mr Oliphant might reverse his earlier decision to dismiss. The tribunal was not convinced that the size of the company justified one individual overseeing every stage of the disciplinary process. 

The tribunal did reduce Mr MacFadyen's compensation by 25% for contributory fault because he was aware that management had a problem with what it perceived to be excessive use of his mobile phone. Mr MacFadyen's total award for unfair dismissal came to £4,627.80. 

View the full transcript of the case 


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