we covered this one the other day and here is the info from Andy…

Dear All

Hope this helps

Following the conversation last week regarding work apps on staff personal mobile phones we have taken legal advice from Croner. They have advised that employers cannot enforce use of apps on personal mobiles and that the employer should either provide a work phone or an alternative method of achieving what needs to be done e.g. say it was a desk booking app, maybe have this installed on the work chromebook or arrangements to be agreed via email/chat with Team Leaders.

There is a case that was lost by the employer at tribunal around this, I’ve copied extracts below  (XpertHR Alsnih v Al Quds Al-Arabi Publishing & Advertising ET/2203652/20)

Employment tribunal decision

The preliminary issue for the tribunal was to determine whether Ms Alsnih was an employee or a freelancer. After considering the evidence and the reality of the working relationship between her and the newspaper, the tribunal concluded that Ms Alsnih was an employee and that her unfair dismissal claim could proceed.

The tribunal found that the principal reason for Ms Alsnih’s dismissal was her refusal to use the Viber app on her personal mobile. This fell within the category of conduct and was a potentially fair reason for dismissal.

While the tribunal accepted that the newspaper genuinely believed that Ms Alsnih was guilty of misconduct, it found that it did not have reasonable grounds for that belief.

I accept that it was reasonable for the respondent to insist on their staff, including the claimant, using Viber. It was up to the respondent to decide if it found that the most practical process. What was unreasonable, was the expectation that the claimant put it on her personal mobile. It meant she could not separate her home and work life.

This was largely because it had not carried out a proper investigation or held a disciplinary hearing, and Ms Alsnih was never told that her job was at risk if she did not use the Viber app. This was in breach of the Acas code on disciplinary and grievance procedures. The tribunal held that these procedural failings made the dismissal unfair.

Having made that finding, the tribunal concluded that the dismissal was also unfair on substantive grounds. Applying the band of reasonable responses, the tribunal said that no reasonable employer would:

• dismiss an employee for refusing to put an intrusive work-related app on their personal phone; and
• refuse to pay for a separate phone.

In the tribunal’s view, the newspaper had had practical alternatives such as giving Ms Alsnih a separate phone or installing the app on her laptop in a way that did not interfere with her personal phone.

Andy