Prison officer sacked for racist Facebook comments fails in ‘unfair dismissal’ claim

Employment Tribunal (Scotland)
Employment Tribunal (Scotland)

A prison officer who was sacked for “gross misconduct” after posting “inappropriate and offensive” comments about Muslims on his Facebook page has had an “unfair dismissal” claim rejected.

An Employment Tribunal dismissed the claim after ruling that the dismissal for breaching the employer’s social media policy was “within the band of reasonable responses” and was “fair”.

Judge Sally Cowan at the Edinburgh Employment Tribunal heard that the claimant TM was employed by custodial and rehabilitation services provider Sodexo Justice Services in 2008 and was later promoted to prison senior custody officer at HMP Addiewell before his dismissal on 11 July 2018.

TM, who was “well regarded” by his employers as a “capable and professional prison officer” who had “no previous disciplinary history”, was suspended pending an investigation after a colleague anonymously informed the respondent that alleged racist comments had been posted on Facebook by the claimant while he was off duty.

The claimant received a letter confirming his suspension, which indicated that it had been alleged that he had made comments on Facebook that could be “damaging to the reputation of Sodexo”, in breach of the company’s social media policy.

The investigation was to look into the allegations that TM made “inappropriate comments about Muslims and the Muslim religion on Facebook”.

The claimant told the investigation that his posts included phrases which were quotes from Tommy Robinson and were therefore “not his own views”.

The claimant was invited to a disciplinary hearing where the allegation to be considered was that “you made inappropriate comments about Muslims and the Muslim religion”.

He was also informed that the allegation was one of gross misconduct and that he was entitled to be accompanied at the meeting.

At the meeting he suggested that if he was quoting Tommy Robinson, then he was not making inappropriate comments, but was attempting to “educate” others who were part of the conversation.

However, the respondent held that the claimant’s actions breached four of the company’s policies and amounted to gross misconduct and concluded that dismissal was the “appropriate sanction”.

The claimant asked for a review of the decision, but his appeal was dismissed, following which he brought a complaint of unfair dismissal.

The party litigant argued that screenshots of his Facebook page had been “doctored” and that the respondent did not therefore have sufficient evidence on which to base their reasonable belief that misconduct had occurred or reasonable grounds on which to base that belief.

He claimed that he had no idea that he was not allowed to quote people and that his comments had been “misinterpreted”, describing the respondent’s decision to dismiss him as the “nuclear decision”.

However, the tribunal concluded that the claimant was dismissed for reason of misconduct, which is a “fair reason” under section 98 of the Employment Rights Act 1996 and that the disciplinary procedure was “fair”.

In a written decision, Judge Cowan said: “In deciding whether the band of reasonable responses included dismissal, the Tribunal considers that the respondent’s policy on discipline for discrimination and/or breach of the social media policy is clear gross misconduct. What constitutes gross misconduct in the respondent’s employment needs to be considered within the context of the work.

“The job of a prison officer involves engagement with people of a variety of religions and ethnic backgrounds. The respondent has policies to ensure that prison officers do not discriminate against any prisoner or other staff member with regard to their race or religion.

“The respondent takes a strict view on breach of the equality and social media policy. It was reasonable for the respondent to have such policies and to enforce them.

“In all the circumstances, the claimant’s dismissal for breach of the respondent’s social media policy and rules of conduct was within the band of reasonable responses.”

© Scottish Legal News Ltd 2020