EMPLOYERS should have usage rules, says Donna Reynolds
When I learned recently of the existence of what is claimed to be the first street for mobile phone users, I could have been excused for thinking that it was April Fools’ Day.
I might yet learn that it was an elaborate hoax and no such lane exists in China (by all accounts, it is specially painted to instruct those walking with mobiles to keep to one side with white arrows to direct them in the right direction), but I now see people on their mobiles everywhere I look – walking down the street, crossing the road, in the supermarket queue and even behind the wheel. Checking emails, tweeting, banking and checking Facebook, to name but a few activities that are keeping us glued to our screens.
The exact amount of time we spend on our mobiles varies depending on the study you happen to read (although there an app for that). However, it’s clear that it is a significant amount of time; Ofcom’s annual study last year found that the growth in smartphone use has contributed to adults spending an extra two hours per day on media and communications since 2010.
Another study, conducted by marketing agency Tecmark, reveals that the average user picks up their mobile 1,500 times a week. They are an extension of our hands and so it should come as no surprise that we are using them while we are at work – and not always for work purposes or during our lunch break.
Employers have been long accustomed to implementing and enforcing a Driving at Work Policy; it poses a significant road safety risk to both the driver and other road user and making or receiving calls while driving will be treated as gross misconduct and may result in dismissal. This is unsurprising when employers may be liable for the use, by their employees, of hand-held mobiles while driving if they fail to forbid this while on company business.
The same can now be said about the use of policies dealing with acceptable use of the internet through employers’ IT systems. With the standard exception of pornography and gambling sites, it’s not uncommon for employers to allow access in the employees’ own time. However, whilst employers are becoming increasingly frustrated with employees who think it is acceptable to use their mobile whilst at work (whether that’s in the office, on the shop floor, on the production line or behind the bar), many don’t know how to tackle this issue. It may be that their existing policies have not been updated to take account of this relatively recent phenomenon or they have focused, not unfairly, on the issues posed by social media and tackling work-related misbehaviour that social media has exposed.
The reality is the use of mobiles at work can be a distraction, affect productivity and pose a health and safety risk. Employers can put in place rules about their use which can include a complete ban, and any failure to adhere to these rules can result in disciplinary action. Depending on the nature of the work or the work environment, dismissal may be a potential disciplinary sanction. However, employers should set out in writing any breaches of rules likely to lead to dismissal, especially for a first offence. By way of example, in Chartres v Watson 1604488/10, the Employment Tribunal found a teacher had been unfairly dismissed for making a call during a lesson. The school had not established the rule against teachers using mobile phones during lessons was known as part of the “general culture” of the school or that it was known that dismissal would follow.
The typical argument made by employees when such a ban is imposed is ‘but what if there’s an emergency? My husband/my kids/my kids’ school/ may need to reach me’. There will undoubtedly be occasions when employees need to contact or be contacted by others. The simple solution is to provide the use of a work phone, although it should also be made clear that any abuse of this will be dealt with under the disciplinary procedure.
It may seem draconian to clamp down on their use at work but as they seem to be an extension of our hands, not only will this interfere with our ability to do our jobs, the only real alternative may be to introduce mobile lanes in the workplace.
• Donna Reynolds is a partner at CCW Business Lawyers, ccwlegal.co.uk