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Civil servant fired for ‘racist’ tweets was unfairly dismissed, tribunal rules

11 Oct 2018 By Emily Burt

DWP failed to investigate circumstances of work coach’s messages, despite his ‘culpable and blameworthy’ actions

A civil servant who was fired by the Department for Work and Pensions (DWP) after he posted "racist and political" tweets from a personal social media account was unfairly dismissed, Manchester employment tribunal has found

Ayub Patel was employed at the DWP between 18 December 1991 and 1 December 2017, most recently as a work coach at the Blackburn Jobcentre. According to the organisation’s behavioural policy, civil servants 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. 

On 24 October 2017, the DWP began investigating an anonymous complaint that Patel 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.

Patel attended an investigation interview with a trade union representative, and was shown nine tweets from his account that contained “tasteless offensive, racist and political” comments, which it was said breached the policy.

Patel 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 owner with the DWP, it did not matter what was tweeted. 

He expressed regret for his actions, and said that if he had realised he was in breach of company standards he would not have behaved the same way. 

Emma Smith, a customer service leader at the Blackburn Jobcentre, was subsequently appointed to handle Patel’s case. She held a disciplinary meeting with Patel in November 2017, but did not review every offending tweet with him, or give him the opportunity to comment on each of the tweets she had in mind when reaching her decision to dismiss him. 

Following the meeting, Smith took advice from the HR department but did not carry out any further investigation into Patel’s case, such as looking into what was said regarding social media during the training sessions Patel had attended, or investigating where the complaint over Patel’s conduct had originated from, the tribunal heard. 

Patel was dismissed for gross misconduct on 1 December 2017. He appealed the decision, but this was not upheld by his employer. 

The tribunal found that during the disciplinary process, Smith had failed to properly investigate Patel’s assertion that he had been told tweets would not breach the behavioural policy as long as there was no association with the DWP from his personal account. She additionally failed to thoroughly examine the tweets prior to the disciplinary hearing, therefore denying Patel the opportunity to comment on her decision-making.

“This decision identifies the vital importance of procedural correctness which includes, as shown by this case, consideration of small but significant aspects of a case involving misconduct,” said Paul Holcroft, associate director at Croner. 

“Allegations must be made clear to employees so they are able to fully defend them and a failure to point to specific tweets by the dismissing officer was pivotal to the unfair dismissal finding here.”

Smith also failed to provide a clear reason for the decision to dismiss Patel for gross misconduct, as she could not establish that he had deliberately breached the behavioural policy, and he had expressed contrition. These failures amounted to a breach of contract on the part of the DWP, the tribunal found. 

“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 present case with another which blatantly would warrant a finding of gross misconduct,” Holcroft said. 

“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 ultimate decision on dismissal.” 

The tribunal concluded that Patel had been unfairly dismissed – although he was found to be guilty of “culpable and blameworthy” conduct with his offensive remarks on social media, and was charged a contributory fault of 50 per cent to be decided at a remedy hearing in November 2018. 

The DWP did not respond to People Management’s request for comment.

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