The Employment Tribunal recently held that a former London Underground employee who posted offensive remarks about the Black Lives Matter (“BLM”) protests on their private Facebook account was unfairly dismissed.
Background
In June 2020, Ms Webb made several posts on her private Facebook page that related to the murder of George Floyd and other BLM related protests, with one post suggesting that those taking part in the BLM protests should be hit with “tear gas, bullets and water cannons”.
Ms Webb’s Facebook page listed the London Underground as her employer.
Colleagues of Ms Webb complained to the employer about her posts and provided screenshots of the posts which were also shared on Twitter and were seen by the commissioner for Transport for London.
Investigation
Mr Naughton, train operations manager, was tasked with conducting an investigation into the offensive Facebook posts. During the fact-finding meeting held, Ms Webb told Mr Naughton that she was angry and upset about the feedback she had received and claimed to be subject to homophobic comments. Ms Webb was asked to take down the various Facebook posts and initially declined, before changing her mind and subsequently taking them down.
Ms Webb was suspended from work pending the outcome of the investigation and was later signed off work by her GP for mental health reasons. This meant that a second fact-finding meeting did not take place until November 2020.
In the November meeting, Ms Webb was represented by a trade union official, Mr Morris. It was the Tribunal’s view that Mr Morris’ participation was viewed with suspicion by London Underground, in part because Mr Morris was not from one of the usual unions it dealt with.
Outcome of Investigation
In January 2021, a disciplinary interview took place where it was suggested that Ms Webb was not remorseful about the posts. Ms Webb argued as part of her response that she could not be racist as she had two mixed-race children and that other members of her family were black. Ms Webb also added that her Facebook posts were not a workplace matter as her profile was private.
Ms Webb was subsequently dismissed in February 2021. On appeal, Ms Webb argued that her employer had breached her right to freedom of speech under Article 10 of the European Convention of Human Rights, as well as her right to a private life under Article 8. Mr Howarth, who dealt with Ms Webb’s appeal, found that she was “entirely unrepentant” and suggested that if she had taken a different view that the outcome may not have been the same.
ET’s findings
The ET agreed that the posts had a significant impact on Ms Webb’s work colleagues, with some stating that they would be hesitant to work with Ms Webb again in light of the views she expressed on racial issues.
The ET went on to agree with the employer whereby despite Ms Webb’s Facebook profile being private, this did not mean that it couldn’t be a workplace matter as the posts could still enter the public domain.
The ET agreed that the London Underground had restricted Ms Webb’s right to freedom of speech when it dismissed for the posts on her Facebook page but held that the decision was justified as the posts had deeply offended her peers and presented a reputational issue for the employer.
The ET was satisfied that the principal reason for Ms Webb’s dismissal was misconduct, and specifically the making of inflammatory, offensive, racially divisive social medial posts. However, it found that the procedure and therefore Ms Webb’s dismissal was unfair, having regard to the size of the organisation and its administrative sources. The ET held that a large organisation such as the London Underground had good access to in-house human resources and legal advice. However, and whilst the ET found that the London Underground’s decision to dismiss fell within the band of reasonable responses, it did reduce Ms Webb’s compensation by 75%. Ms Webb’s compensation was reduced because of the serious nature of her conduct and contributory fault, when weighed against her long and unblemished previous employment record and the fact that the London Underground had made serious procedural errors when dealing with the disciplinary process. The London Underground was ordered to pay £3,564.25 in respect of Ms Webb’s unfair dismissal and a gross sum for unpaid holiday entitlement.
Critique of the Investigation
Despite Mr Howarth dealing with the appeal process only, the one evidence which he reviewed were four relevant Facebook posts, and not the brief prepared by Mr Naughton.
It was also found that Mr Howarth had failed to consider Ms Webb’s long and unblemished career with her employer, having been with the company since 1989. This was as a result of the managers conducting the investigation and appeal receiving limited assistance when seeking advice from the legal department and was told to apply the policies and get on with it.
What can employers learn from this?
- Selecting an appropriate investigator is crucial. An investigator without the requisite skills, technical/subject matter knowledge and independence can undermine the whole process.
- Suspension should not be the default approach at the stat of an investigation. Always check the employee’s contract to see if it contains the power to suspend.
- The health and wellbeing of all staff involved in the investigation should be considered. Those involved should be reminded about any resources available, such as helplines or employee assistance programmes.
- Where an employee is signed off by their GP during the investigation, it would be appropriate to suspend the investigation temporarily. The investigator should consider what adjustments or allowances can be made to progress the investigation in the absence of the employee.
If you would like to discuss any of the topics covered in this alert update in more detail, please contact Partner Emma Bartlett, who specialises in employment law issues for multinational employers, senior executives, partnerships, LLPs, partners and LLP members.
