Proving your staff are aware and understand your policies could be the difference between a fair and an unfair dismissal
In Paul Weller v First MTR South Western Trains Ltd, the employment tribunal (ET) considered whether Mr Weller’s dismissal for conduct relating to publication of various tweets on his private Twitter account was unfair.
Background
The employer (First MTR South Western Trains Ltd) is a train operating company with a multi-cultural staff profile. Mr Weller started employment with the train company on 9 June 2008 as a train guard and qualified as a train driver in 2011.
In 2009, Mr Weller opened a Twitter account, which was accessible by the public. He also had an Instagram account. Initially, the content was mainly about weightlifting, but it later became focused on Brexit and expressions of opinion against immigration.
Employer’s policies
On 1 April 2011, Mr Weller signed updated terms and conditions which stated, amongst other things:
‘You are required without exception to act in the spirit of the equal opportunities/harassment policies at work which are applicable to employees…’
The employer’s harassment policy stated:
‘Social media can pose a risk of …harassment and/or discrimination against employees or third parties. Social media includes online social forums such as Twitter. For further information on the use of social media please refer to the company social media policy.’
In March 2018, an IT ‘Acceptable use policy’ was issued and in July 2018, to coincide with the introduction of tablets to drivers, the employer introduced a ‘Social media policy’. On 13 November 2018, Mr Weller received an electronic tablet. At the same time as the tablets were distributed to drivers, a bundle of other documents was provided in a plastic folder including the social media policy and the acceptable use policy.
Offensive tweets
On 12 June 2020, the employer received an anonymous letter from ‘A concerned SWR user’, which sought to ‘highlight the disturbing trend of views frontline SWR staff seem consistently to hold’. The letter included screen shots of the following tweets from Mr Weller’s Twitter account:
- ‘I want my country back, I don’t want any more immigrants, I don’t want any more diversity or multi-culturalism I’ve had enough of it…’
- ‘China whoops, sorry those chinki c**ts released this virus to kill the western world yes no?’
Mr Weller was summoned to attend a fact-finding interview with Mr Bumstead, who worked in HR. In preparation for the meeting, another HR colleague looked at Mr Weller’s Twitter account and took screenshots of some other tweets he had made, which included:
- ‘Our beloved NHS isn’t underfunded…you allow over 2 million immigrants into your country and give them full access to the NHS, it’s now at full stretch.’
- ‘I am so pleased the government went ahead with the deportation plane. We have a lot more flights to fill especially to Pakistan #evilgroominggangs.’
Fact-finding meetings
At the first meeting, Mr Bumstead put before Mr Weller a copy of the documents Mr Weller had signed in November 2018 and suggested that he had received the social media policy. Mr Weller said that he did not recall receiving the social media policy. He also stated that he had not read the bullying and harassment policy or the social media policy.
A further two fact-finding meetings took place before Mr Weller was advised of the date of his disciplinary hearing and provided with a pack of documents in advance. The hearing was conducted by Mr Kennedy, the driver depot manager at Salisbury depot.
Disciplinary hearing
At the disciplinary hearing, Mr Weller was accompanied by his representative Mr Davey. Mr Davey submitted that Mr Weller should have been briefed and educated on the social media policy. Mr Weller made a prepared speech in which he stated that he had made an error and that he could see how his tweets could be ‘offending and discriminating a work colleague’. He expressed hope that he could apologise, that he was out of his depth on social media, and asked for help with awareness or equality courses.
After deliberating for 45 minutes, Mr Kennedy concluded that, although he was grateful for the expressions of remorse, the effects of the conduct could not be undone. Therefore, he decided that the appropriate sanction was dismissal.
Mr Weller appealed the dismissal, but the sanction of dismissal was upheld at an appeal hearing.
ET findings
In coming to its conclusions, the ET considered the following:
- Did the employer genuinely believe Mr Weller had committed misconduct?
- Did the employer act reasonably in all the circumstances in treating that as a sufficient reason to dismiss Mr Weller, in particular:
- Whether there were reasonable grounds for that belief.
- Had the employer carried out as much investigation as was reasonable in all the circumstances?
- Was dismissal within the range of reasonable responses for the employer?
- Was Mr Weller dismissed fairly in all the circumstances?
The ET concluded that the employer had reasonable grounds for concluding that Mr Weller’s conduct breached one or more terms of the policies. However, as regards the employer’s managers having reasonable grounds for believing that Mr Weller had knowledge of the policies and their contents, the ET found that they did not have reasonable grounds for this belief.
Mr Weller claimed that:
- He had not collected the paperwork.
- He was not aware of the contents of the polices and had not been briefed on them.
- He had not used his tablet (that is, he would have had no need to question the lack of paperwork explaining how to use it).
In addition, the document which recorded that Mr Weller had received, been briefed on and agreed the social media policy – the Record of Briefing – was unsigned.
The judge recorded that if Mr Weller had received and been briefed on the relevant policy, he would have been satisfied that dismissal would have been within the range of reasonable responses open to the employer.
For the reasons above, the judge concluded that Mr Weller had been unfairly dismissed.
Summary and advice
This case demonstrates that employers should have a social media policy, clearly setting out the standards expected of employees regarding social media. However, it is not enough just to have a social media policy: employers must ensure that its employees know that misuse of social media in breach of the policy could be considered gross misconduct. Employers should also ensure that they keep evidence that employees have been made aware of the policy by signing a confirmation document that they have been briefed on the policy and understand it.
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