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Train driver wins unfair dismissal claim after tweeting “offensive, insulting, discriminatory and derogatory” comments

Makbool Javaid, Partner - Simons Muirhead Burton

In the case of Paul Weller v First MTR South Western Trains Limited Paul Weller was a train driver with an unblemished employment record, and had received a number of employee awards and commendations.

In about 2009 the claimant opened a twitter account. He also maintained an Instagram account where he posted material about his weightlifting interest. His twitter account was accessible by the public. He used his own name, and his profile picture was of himself lifting weights. By the time of the events in issue the claimant had posted over 3700 tweets. Initially the content related to his hobby of weightlifting, latterly it had become focussed on Brexit and expressions of opinion against immigration.

On 29 November 2019 the claimant re-tweeted without comment 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 multi-culturalism I’ve had enough of it I don’t want the ideology of Islam I don’t want halal slaughter. I don’t want burkhas everywhere I want to hear the English language.’

On 14 April 2020 the claimant tweeted “China whoops, sorry those chinki c***s released this virus to kill the western world yes no?”.

On 12 June April 2020 Mr Weller’s employer received an anonymous letter from “A concerned SWR User”. The letter sought to ‘highlight the disturbing trend of the views frontline SWR staff seem consistently to hold.”. The letter referred to the use of terms including ‘Chink’ and attacking/mocking Muslims.

Mr Weller was summoned to attend an interview on the following day. The purpose of the interview was a fact find to investigate the complaint letter. Mr Weller was not advised in advance of the reason. A member of staff, Mr Bumstead, who was not familiar with Twitter, asked an HR colleague known as Jade to look at Weller’s account. Jade took screenshots of the tweets.

When Bumstead asked Weller to allow Jade permission to look into his account, Weller “immediately” took his phone out and made the account private. Then during a short break he deleted his account. When Bumstead showed Weller the screenshots of the tweets, Weller “lied” and said his account had been deleted the previous Monday, “falsely” stating he couldn’t delete his account on his phone and needed a laptop and that his account had been hacked so could not admit to any posts.

A disciplinary meeting was held with a Mr Kennedy, during which Weller highlighted that Bumstead “incorrectly” suggested he had signed the social media policy, and said he didn’t know about the paperwork that came with his work tablet and that he had “not collected it”. He also admitted he lied about his account being hacked and that he deliberately deleted it during the meeting, because he “panicked” when he was accused of racism.

The meeting concluded with 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 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.

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”.

The tribunal said Weller’s “offending material” could damage working relationships in a multicultural workforce, and that his conduct was “culpable and blameworthy” and reduced both his basic and compensatory award by 100 per cent.

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