Employers cannot afford to under estimate the importance of getting employees to sign company documents to prove they have been briefed on company policies.
In a recent case a train driver who posted “offensive, insulting, discriminatory and derogatory” comments publicly on his personal Twitter account was unfairly dismissed as there was not significant evidence he understood company policy. Paul Weller – who claimed he was “out of his depth” when he got “sucked in” to Twitter during Brexit and was “chasing popularity” online – was unfairly dismissed by his employer, First MTR South Western Trains (SWR).
Despite completely reducing Mr Weller’s award to zero, the tribunal said SWR did not have “reasonable grounds” to conclude that Mr Weller had been given notice of, or been briefed on, the applicable policy documents as the “critical” record of briefing document was left unsigned. Mr Weller accepted that he was supposed to read the policy and seek help if he did not understand it, but said he “clearly” did not understand the policy.
The tribunal found that, since his employment as a driver began, Mr Weller had received several policy documents – notably in 2018 when all drivers were issued a work tablet – on harassment and social media, as well as a fair usage IT document but that the “critical” record of briefing document was unsigned. Not only did this show that SWR had a policy and procedure of briefing employees and obtaining signatures as a record, it also suggested that Mr Weller had not been briefed, nor had he agreed to the company’s social media policy.
The tribunal documents a string of tweets posted by Weller between 2018 and 2020. On 29 November 2019 he retweeted a post from a third party saying: “I want my country back, I don’t want any more immigrants, I don’t want any more diversity or multiculturalism I’ve had enough of it I don’t want the ideology of Islam I don’t want halal slaughter, I don’t want Burqas everywhere I want to hear the English language.” On 21 December 2019 he retweeted an anti-Islamic cartoon with the statement “keep them out”. On 10 January 2020 he retweeted a tweet by Jeremy Corbyn MP encouraging people to hold up a sign at home/workplace to encourage people to ‘take the knee’ in support of the Black Lives Matter movement. Weller commented: “You total c***.” On 14 April 2020 the claimant tweeted: “China whoops, sorry those chinki c**** released this virus to kill the western world yes no?” Other highlighted tweets included claims that immigrants were damaging the NHS and that people of Pakistani origin were members of “evil grooming gangs”.
SWR received an anonymous letter from a “concerned SWR user” that highlighted “disturbing” views from frontline staff. During the fact finding investigation, Mr Weller said he could not recall receiving the social media policy on his work tablet, he didn’t use his work tablet and had not read the bullying, harassment or social media policies.
He “denied being a racist” but accepted he shouldn’t have used derogatory slurs towards Chinese people stating that it was derogatory and offensive, but “stood by” his opinion about coronavirus. Mr Weller immediately deleted his twitter account. When questioned he lied stating his account had been deleted the previous Monday and that it had been hacked so could not admit to any posts. He later admitted he deleted it during the fact finding meeting, because he “panicked” when he was accused of racism. He claimed he “did not read tweets” before retweeting them. A second fact-finding meeting was held in which Mr Weller said he had taken legal advice and that retweets expressed others’ opinions or his tweets were political or factual commentary. He added that he received a “large number” of messages in support of his tweets.
Mr Weller was subsequently charged with gross misconduct. During the disciplinary hearing Mr Weller said he was “out of his depth” on social media and asked for help or equality courses. He also offered to do an “instructional video” to warn other drivers of the issue. He apologised and said he had been “sucked in” to Twitter when during Brexit his follower count increased from 300 to 1,100, and admitted he “deliberately” retweeted content for popularity. Mr Weller said he was “disgusted with himself and had let his colleagues and family down”. The meeting concluded with Mr Weller’s immediate dismissal. He appealed this in a meeting on 2 September 2020, in which he said he was drinking when he made the Chinese tweet, adding: “When I drink I say silly things.” His appeal was not successful.
However, employment judge Cox said Mr Weller was unfairly dismissed as SWR did not have significant “reasonable grounds” to conclude that he had been given notice of and had been briefed on the policies. Judge Cox explained that the circumstances in which social media activity does not directly identify or criticise an employer, and is conducted on personal equipment out of working hours, was a “nuanced area” in which a reasonable employer “might be expected to provide clarity or some degree of prior education or awareness training”.
Employers can learn from this case that there is no substitute for not only evidencing the fact that employees have received relevant policies by making sure they sign for them, but also ensuring that employees have received training on the policies.