Conduct is a potentially fair reason for dismissal (the others being capability, breach of statute, redundancy and ‘some other substantial reason’). We refer to it being a ‘potentially’ fair reason because, even with evidence of serious misconduct, an employer still must follow a fair process and act reasonably in all the circumstances when dismissing an employee.
That will generally require there to have been a thorough investigation as well as properly conducted disciplinary and appeal hearings. In addition, the sanction of dismissal, as opposed to (for example) a final written warning, must itself be a reasonable outcome. In this regard, the question that the Employment Tribunal (ET) considers is whether dismissal was ‘within the band of reasonable responses’.
Most employers will have heard the phrase ‘gross misconduct’, and know that dismissing an employee for gross misconduct means that no notice or payment in lieu thereof is due. However, it is not always entirely clear what sort of misconduct will constitute gross misconduct. Going back to the point on reasonableness, an employer has to have good reason to class an act of misconduct as gross misconduct, otherwise the ET may find that such a classification was inappropriate.
In that event, the employer may be found not only to have dismissed an employee unfairly, but also to have breached the employee’s contract by not giving or paying in lieu of notice. That was the experience of the Department for Work and Pensions (DWP) in this case.
The facts of the case
Mr Patel was employed by the DWP from December 1991 until December 2017, with his most recent role being a work coach at the Jobcentre in Blackburn. As a government employee, Mr Patel was expected to comply with the provisions of the Civil Service Code (the Code), including in relation to social media.
On that topic, the Code stated that employees must not declare any political affiliation, and must avoid making any sort of tasteless or offensive remarks. Mr Patel was given regular training on the Code, and had to confirm each year that he had read and understood the relevant policies.
In October 2017, the DWP began an investigation into Mr Patel’s Twitter account, as nine tweets had been found in which he had made comments in relation to the British National Party, Donald Trump and “white male Christian” gun owners.
At the investigation meeting, Mr Patel stated that he was told at a training session that it was acceptable to make such comments provided that his Twitter profile did not state that he was employed by the DWP. Indeed, there was nothing on his account to signify a link with the DWP and there was no photo on his account.
Mr Patel accepted that his tweets were inappropriate, but stated that he hadn’t considered them to be in breach of the Code given the lack of link with the DWP on his profile. Nonetheless, he expressed his regret for his actions and stated that there would be no repeat of them.
The matter then proceeded to a disciplinary hearing in November 2017, which was chaired by Ms Smith. During the hearing process, Ms Smith did not discuss each of the tweets with Mr Patel, or afford him the opportunity to make his own representations on them.
After the hearing, Ms Smith did not look into Mr Patel’s claims regarding the training session, or even where the complaint about the tweets had come from. Ms Smith decided to summarily dismiss Mr Patel for gross misconduct, for breaching the Code and for bringing the DWP into disrepute. Mr Patel appealed, but the decision to dismiss him was upheld.
Mr Patel then claimed unfair dismissal and wrongful dismissal, the latter being in relation to not being given or paid for notice.
The ET’s decision
The ET found in Mr Patel’s favour for both claims. The ET was critical of Ms Smith for not investigating whether the complaint had come from a member of the public or one of Mr Patel’s colleagues, and noted that there were several Twitter accounts sharing Mr Patel’s full name. As such, the ET held that Ms Smith had no grounds to decide that Mr Patel had brought the DWP into disrepute.
In relation to breaching the relevant policy, the ET was disapproving of Ms Smith’s failure to look into Mr Patel’s assertions regarding the training session, namely that he could make comments with impunity provided that his Twitter account made no mention of the DWP. As such, Ms Smith did not have good grounds for finding that Mr Patel had breached DWP policy.
The ET also noted Ms Smith’s failure to discuss each of the nine tweets at the disciplinary hearing or state which of them she found to be offensive.
There were also flaws in the appeal process, partly in relation to Ms Smith’s outcome letter making it difficult to identify the issues to appeal, and also because the DWP could not evidence that it had addressed each of Mr Patel’s grounds of appeal. Taking all of that into account, the ET decided that the disciplinary procedure was flawed and unfair.
The ET also criticised the finding that an act of gross misconduct had taken place. No evidence of the DWP’s disciplinary policy was led to support the framing of the allegation as one of gross misconduct. In addition, Ms Smith did not explain in the disciplinary hearing outcome letter how she had come to that conclusion. The ET therefore stated that Mr Patel being dismissed without notice constituted wrongful dismissal.
On the reasonableness of dismissal as the outcome of the hearing, the ET pointed out Mr Patel’s long service, his admission that he had made a mistake, his expression of regret and his promise not to engage in similar conduct in future. It also stated that Ms Smith did not provide an adequate explanation as to why she considered dismissal to be the appropriate sanction, particularly as she accepted that Mr Patel did not breach the relevant policy on purpose, and as a result the ET found that the sanction was not within the band of reasonable responses.
What does this mean?
This case is in no way revolutionary in terms of the law on unfair dismissal. If the DWP had followed the basic tenets of the case law and legislation on unfair dismissal by following a robust procedure, it is likely that Mr Patel would not have been dismissed, or the DWP would at least have had more justification for doing so.
The case is therefore a reminder that cutting corners in an investigation, hearing or appeal process will be criticised by the ET and, regardless of how egregious the conduct, could result in a finding of unfair dismissal.
In addition, employers must be sure that dismissal is appropriate in the circumstances, and should bear in mind that a finding of gross misconduct does not necessarily mean that dismissal should follow. Dismissing a long-standing employee who expresses remorse for his or her actions may be difficult to justify, and if the dismissing officer can’t explain their rationale it is unlikely to be viewed kindly by the ET.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.