Use of Telephone for Private Calls

John Lewis Plc v Coyne (TLR 5 January EAT)

The employer discovered that an employee over a sample year appeared to have made two or three calls a week for about seven minutes each, the cost being estimated at £37.76. The employee who had over 13 years service with no disciplinary matters on her file, was summarily interviewed without warning, and a disciplinary process was instigated minutes after the interview, resulting in her immediate dismissal. The EAT dismissed the employer’s appeal against the finding of the Employment Tribunal that the employee had been unfairly dismissed on the grounds that the necessary investigation had not been carried out fairly. The employer had not investigated the question of dishonesty and had assumed that the conduct was in effect within the same category as stealing. The test was whether the conduct was obviously dishonest by ordinary standards, and if so, whether the person concerned must have realised that that was the case. In many, but not all, cases where the first test was satisfied, dishonesty was not in doubt, but here it was not really obvious that the use of the telephone for personal calls was dishonest and much might depend on the circumstances. That was not to say that an employee who uses an employer’s telephone was immune from proper disciplinary action which might lead to dismissal; but the necessary investigation into such conduct must be fairly carried out so that any decision to dismiss might be seen to be fair and reasonable in a case of alleged illegitimate use of the telephone.