Can browsing Rightmove on your lunch break get you fired? In one recent Employment Tribunal case, it nearly did-but the employer paid the price.
Will Trotter, Solicitor in Rothera Bray's Employment Law team, unpacks a Tribunal decision that raises questions around workplace surveillance, fair disciplinary processes and employee privacy. A cautionary tale involving covert spyware and questionable evidence, this case offers vital lessons for employers navigating misconduct and dismissal.
Background of the case
In Lanuska v Accountancy MK Service , the claimant, Miss Lanuska, was the sole full-time employee of a small accountancy firm. In July 2023, she was summarily dismissed for allegedly engaging in "private business activities" during work hours, specifically browsing websites like Rightmove, Amazon, and Very on her work computer.
The employer claimed this was a breach of their code of conduct and amounted to gross misconduct. However, the Tribunal found the dismissal to be unfair.
The employment tribunal's findings
- The employer had installed spyware on the claimant's computer to monitor her activity
- Over two days, she spent one hour and 24 minutes on personal browsing
- Crucially, the claimant had never been made aware of any workplace policies prohibiting personal internet use
- The claimant's director had similarly used her own work computer for personal browsing, undermining the credibility of the alleged misconduct
- The employer failed to provide proper documentation, disciplinary warnings, or evidence of a fair process
- Diary entries submitted as evidence were found to be fabricated, including one referencing a conversation with someone who was not in the UK at the time
The Tribunal concluded that the employer had no genuine belief in the misconduct and had likely dismissed the claimant to replace her with the director's sister.
The outcome
The Tribunal ruled in favour of the claimant:
- her unfair dismissal claim was successful.
- she was awarded £14,120.41, including a 20% uplift for the employer's failure to follow the Acas Code of Practice.
Key takeaways for employers
This case is a powerful reminder that even small businesses must follow fair procedures when handling employee misconduct.
To avoid similar pitfalls:
- publish clear conduct policies and ensure employees acknowledge them
- avoid covert monitoring without proper notice and justification
- follow a fair disciplinary process, including warnings and hearings
- don't assume an employee's length of service is always based on the start date under their contract of employment
- document everything accurately and honestly
Monitoring and privacy considerations
Although not the central issue in this case, the use of spyware raises serious questions about employee privacy and data protection. Where an employee is covertly monitored, especially in the absence of any prior performance or conduct concerns, they may be able to bring a constructive unfair dismissal claim. This would be based on the argument that the employer's actions have breached the implied term of mutual trust and confidence, making the working relationship untenable.
To avoid this risk, employers should:
- conduct Data Protection Impact Assessments
- implement clear electronic communications policies
- comply with the ICO's guidance on employee monitoring
Monitoring should always be justified, proportionate, and clearly communicated. Covert surveillance without a legitimate basis can not only damage employee relations but also expose employers to legal claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
