“You’re fired!” – Can you be sacked by text message?

Earlier this year, sixteen year old Domino’s employee Caitlin McConnell, claimed she had been fired by text message.

Ms McConnell had worked for the company for just two months, when she allegedly received a text from her line manager which read: “I’m afraid to inform you that we cannot accommodate you any longer”.

A series of texts followed with Ms McConnell posting screen grabs of the conversation on Domino’s Facebook page. Dominos are currently investigating the incident. Whilst it is certainly questionable whether it is appropriate or professional to dismiss an employee by text, are there any legal implications that employers need to be aware of?

Dismissal: the law

An employer must show that they have a valid reason for the dismissal and that they have acted reasonably in the circumstances. A valid reason might relate to capability, conduct, redundancy, unlawfulness or some other substantial reason. However, if a fair procedure has not been followed and there has been no discussion prior to the text, it may be difficult to show reasonableness.

In a recent case before the Employment Tribunal, a housekeeper was sent an abusive text from his employer dismissing him. In December, the Tribunal found that Robin Pyke, a housekeeper to a multi-millionaire couple, had been unfairly dismissed. Whilst the Judge was satisfied Mr Pyke’s conduct was a potentially fair reason for dismissal, he criticised the lack of investigation which he said would have been the action of a reasonable employer.

Notice

Domino’s worker Ms McConnell also claimed that when she complained about her lack of notice, her boss wrote: 'Lol you're trying to sound clever’. So what is the law in relation to notice?

Often employment contracts stipulate that notice must be given in writing and unless otherwise stated, a text message is likely to satisfy this requirement. Some contracts even go as far as to specify the method by which notice must be served (i.e. by first class post). If this is the case and the process has not been followed, an employee might have a claim for breach of contract.

Consideration must also be given to the amount of notice given to an employee. In accordance with legislation, an employee must either be given the statutory minimum notice period notice or the period stated in their contract, whichever is longer.

An employee, who is dismissed without notice or the correct amount of notice, may have a claim for wrongful dismissal. As with every rule, there are of course exceptions. For example, there is no requirement to give an employee notice if they are dismissed on the ground of gross misconduct.

Length of Continuous Service

In order to bring certain claims including unfair and wrongful dismissal, an employee must have at least two years’ continuous service. However, legislation recognises that it would be manifestly unfair if this was an absolute bar in respect of all claims. Therefore, employees with less than the requisite two years’ continuous service may bring a claim if the reason for their dismissal can be said to be ‘automatically unfair’.

For example, if the reason related to an employee reporting a breach of health and safety or other legal obligation, then the employee may have a claim for whistleblowing. An employee may also bring a claim for discrimination if the reason for dismissal relates to gender, race, age, disability, religion or sexual orientation.

It remains to be seen whether in this digital day and age, dismissal by text message will become the norm and Employment Tribunals will be inundated with claims. Aside from ethical and commercial considerations, the cases before the Tribunal have demonstrated there may also be potential legal consequences.

Should you have any concerns about your rights or the rights of your staff, please do not hesitate to contact our Employment Team for further advice.