A recent Tribunal decision has sent a clear message to employers: surveillance alone is not a shortcut to fair dismissal. In Lanuszka v Accountancy MK Services Limited, an Accountant was unfairly dismissed after her employer relied on spyware evidence of personal internet use during working hours. The decision is an important reminder that even where misconduct is alleged, dismissals must be proportionate, procedurally fair, and properly investigated.
Background
Anna Lanuszka joined Accountancy MK in 2017 as its only full-time employee. When the business ceased trading in 2021, the Director, Agnieszka Krauze, set up a successor company, Accountancy MK Services, and transferred Lanuszka’s employment into the new entity and continued her role as Accountancy Administrator.
Two years later, Krauze installed spyware software on Lanuszka’s computer. The software monitored and categorised every website visited. Analysis reported that Lanuszka had spent around 1 hour and 24 minutes on “personal matters” and just over an hour on work matters. The company concluded that this meant she had not been dedicating her time properly to work.
However, Lanuszka explained that she was permitted to use her computer for personal purposes, during breaks or once her work was complete, something Krauze herself regularly did. She admitted to visiting shopping and property websites and checking travel information, but she also highlighted that the software had wrongly labelled work-related tasks, such as Excel training and project planning as “personal” matters.
Krauze maintained that Lanuszka had received copies of company policies prohibiting this type of conduct, but the Tribunal later found that this was not the case. Krauze also claimed that performance issues had been documented over several months, but the Tribunal determined that the diary entries documenting her performance which were provided in evidence were created retrospectively and therefore lacked credibility.
On 31 July 2023, without a hearing, warning or opportunity to respond, Lanuszka was dismissed with no notice. Her dismissal letter accused her of engaging in private business during working hours, describing this as a breach of the company’s code of conduct, and asserted that a “thorough investigation” had been carried out.
Decision
The Tribunal found the dismissal to be unfair on multiple grounds. Firstly, there was no evidence that Lanuszka had been prohibited from using her computer for personal matters, and in any event, the time she had spent browsing personal websites was not considered excessive. The Tribunal also noted that a substantial portion of the time considered as “personal” was in fact work related or professional development, making the company’s reliance on the spyware report questionable.
The Tribunal was particularly critical of the lack of investigation. No effort had been made to scrutinise the software’s findings or discuss them with Lanuszka before the decision was taken. Instead, her dismissal appeared pre-determined. The Tribunal also rejected the company’s assertion that disciplinary procedures had been followed, and accepted Lanuszka’s account that she was simply told she wad dismissed without a hearing.
The Tribunal determined that there were no reasonable grounds for concluding Lanuszka had committed misconduct, and that dismissal fell outside the range of reasonable responses open to the company. The Tribunal therefore upheld her unfair dismissal claim, awarding her over £14,000 in compensation, which included a 20% uplift for the company’s failure to comply with the Acas Code of Practice.
Lessons for Employers
- Follow proper procedures: Even where misconduct is suspected, a fair disciplinary process must be followed, including notice of allegations, an opportunity to respond, and consideration of alternatives to dismissal.
- Investigations must be thorough and fair: Employers cannot rely solely on monitoring software or untested systems. Evidence should be carefully reviewed and discussed with the employee.
- Records and evidence must be genuine and contemporaneous: The Tribunal placed significant weight on the finding that diary entries alleging performance concerns were created after the fact. Retrospective record keeping which justifies dismissal may lack credibility in litigation. Employers should ensure that any notes of performance or conduct concerns are created at the time.
How we can help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
