Be clear during disciplinary hearings, that mitigating factors are taken into consideration

A civil servant who was dismissed by the Department for Work and Pensions (DWP) after he posted “racist and political” tweets from a personal social media account was unfairly dismissed, according to an employment tribunal.

The DWP’s behavioural policy, confirms that employees must not signal any political affiliation, and must “avoid making any kind of personal attack or tasteless or offensive remarks to individuals or groups” in person or on social media accounts.  Employees are obliged to review the behavioural policy on an annual basis, and are warned that failing to comply can have serious consequences, including dismissal.

It was alleged that the employee had breached the standards of the social media policy in tweets from his personal Twitter account which included messages referencing far-right extremist Tommy Robinson; US president Donald Trump; and “white male Christian” gun owners. The employee was investigated, and shown nine tweets from his account that contained “tasteless offensive, racist and political” comments, which allegedly breached the policy. He accepted that some of the comments were offensive, but said that during a previous security presentation a trainer had indicated that if nothing on a personal Twitter account associated the writer with his employer, it did not matter what was tweeted.

He apologised for his actions, and said that he did not know he was breaching company policy. At the subsequent disciplinary meeting, the employee was not entitled to comment on each of the tweets and the disciplinary manager failed to look into what was said during the training sessions referred to.  The employee was dismissed for gross misconduct and a subsequent appeal was not upheld.

The tribunal found that during the disciplinary process, there was no investigation into the fact that the employee had been told that tweets would not breach the behavioural policy as long as there was no link with his employer.

What is clear from this case is that allegations must be made clear to employees so they are able to fully defend them. The employer did not take into account that the employee had expressed contrition. The failure of the employer to consider the mitigating circumstances led to the tribunal’s decision that ‘gross’ was not the correct label to attach to the misconduct. Employers must consider any detail which may differentiate the case with another which blatantly would warrant a finding of gross misconduct.

Factors such as a clean disciplinary record and admission of guilt will be taken into consideration by a tribunal and therefore must also influence the employer’s decision on dismissal.

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