The test of whether or not a dismissal is fair or unfair in law is set out in the Employment Rights Act 1996. This provides that it is for the employer to show that they dismissed the employee for one of the potentially fair reasons (conduct, capability, redundancy, breach of a statutory enactment, or some other substantial reason justifying dismissal). This is usually not a very onerous burden. The next test is whether dismissal is reasonable in the circumstances of the case. This is a somewhat subjective test, and the area where many employers fall down. In conduct cases, the employer will have to show that they followed a fair procedure in investigating the alleged wrongdoing, that they held a fair disciplinary process, and that the decision to dismiss was within the 'band of reasonable responses'.

This was illustrated in the recent Tribunal decision in Patel v DWP (2018). Mr Patel was a long serving civil servant working for the DWP, most recently as a work coach at a local Jobcentre. According to the DWP’s policies, civil servants were understandably not allowed to express any political affiliation and were required to “avoid making any kind of personal attack or tasteless or offensive remarks to individuals or groups”, whether in person, in writing or on social media. The policies also made it clear that breaches of the policies could be treated as gross misconduct.

The DWP received an anonymous complaint that Mr Patel had made tweets from his personal Twitter account which referred to far right extremists, Donald Trump and “white male Christian” gun owners. The DWP invited him to an investigation meeting and presented him with 9 tweets which were said to contain “tasteless, offensive, racist and political” comments. Mr Patel accepted that some of the tweets were offensive, but also pointed out that during a training session on the social media policy, the trainer had said that provided that provided that social media messages did not identify the DWP and were sent from personal accounts, then it did not matter what people wrote. Mr Patel apologised if he had breached the policies, but said that he had not realised that he was doing so.

Following the investigation the DWP decided to call Mr Patel to a disciplinary hearing. This was heard by a customer service leader. She did not review all the tweets which were the subject of the disciplinary, or give Mr Patel the opportunity to comment on them all. At the end of the meeting she postponed her decision in order to take advice from the HR department, but neither she nor the HR department carried out any further investigation. In particular, nobody investigated what Mr Patel said he had been told at the training session about posts on personal social media accounts which did not identify the DWP being outside the scope of the policies.

Mr Patel was dismissed for gross misconduct. He appealed against this decision, but the appeal was rejected. He then brought a claim for unfair dismissal in the Employment Tribunal. The Tribunal found that Mr Patel had been unfairly dismissed. They were particularly critical of the failure to investigate what Mr Patel said he had been told by the trainer, and also of the failure to allow Mr Patel the opportunity to comment on the tweets at the disciplinary hearing. The Tribunal did, however, find that Mr Patel was guilty of “culpable and blameworthy” conduct and that therefore any compensation would be reduced by 50%. We wait to see whether the DWP appeal against the finding, or whether Mr Patel appeals against the finding of contributory fault.

The case does neatly illustrate the need for a disciplinary process to be reasonable and for the need for a thorough investigation. On the face of it, natural justice would say that if Mr Patel was told that he could in effect say what he liked on his own social media accounts without breaking any rules, then he was very badly treated by the DWP. The real issue for the DWP is that they didn’t bother to investigate the claim.

It is easy for employers to fail to see the wood from the trees in cases like this, and this is why you should seek legal advice early in the process.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.