A former London Underground employee who posted offensive remarks about the Black Lives Matter protests on Facebook has been awarded more than £7,000 in compensation for unfair dismissal and unpaid holiday entitlement.
An employment tribunal has found that London Underground’s decision to dismiss trains manager Ms Webb was unfair due to procedural flaws, although it agreed the comments that led to her dismissal were inflammatory and offensive.
In June 2020, Webb made several posts on her Facebook page that related to the murder of George Floyd by police officers in the US. These included: “Never deserved to be murdered by a police man. But… really was not a nice guy”, and “On 22 May 2013, no-one rioted in the UK when two black men hacked Lee Rigby to death. It’s time to bring back the death penalty. Where were you all then? ‘All lives matter’”.
One post suggested that people taking part in Black Lives Matter protests should be hit with “tear gas, bullets and water canons”.
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Webb’s Facebook page listed London Underground as her employer.
Colleagues complained to the organisation about Webb’s posts. Screenshots of the posts were also shared on Twitter and caught the attention of the commissioner for Transport for London, which operates the London Underground.
The tribunal agreed that the posts had a significant impact on her colleagues, including those who were black, managers, and those for whom she had responsibilities as a line manager. Some said they would be hesitant to work with the claimant again in light of the views she expressed on racial issues.
Train operations manager Mr Naughton launched an investigation into the offensive Facebook posts. Webb told Naughton she was angry and upset about the feedback she had had and claimed she had received homophobic comments. She initially refused to take the posts down but later changed her mind and removed them from her Facebook page.
Naughton held a fact-finding meeting with Webb and she was suspended from work.
She was later signed off sick for mental health reasons and a second fact-finding meeting did not take place until November 2020.
In the November meeting she was represented by a trade union official from the Workers of England Union, Mr Morris, but his participation was viewed with suspicion by London Underground, in part because he was not from one of the usual unions it dealt with.
A disciplinary interview took place in January 2021, during which it was suggested by a manager that Webb was not remorseful about the posts. The claimant argued that she could not be racist because she had two mixed-race children and that other members of her family were black.
She also argued that the Facebook posts were not a workplace matter as they were put on her private page, which both the respondent and the tribunal disagreed with as posts can still enter the public domain.
Webb was dismissed in February 2021. On appeal, she argued that the organisation had breached her right to freedom of speech under article 10 of the European Convention of Human Rights, as well as her right to private life. Mr Howarth, who dealt with the appeal, found she was “entirely unrepentant” and suggested that if she had taken a different view then the “outcome would have been very different”.
Howarth also felt the trade union representative, the same man who appeared at the disciplinary hearing, came to the appeal with a “confrontational and antagonistic approach”.
Tribunal’s judgment
It emerged in the case before the employment tribunal that the only evidence Howarth had seen was the four relevant Facebook posts, and he had not looked at the sizeable brief Noughton had provided. It also felt Howarth’s attitude towards the union rep had affected his decision to reject her appeal.
The tribunal also found Howarth had failed to consider Webb’s long and unblemished career at London Underground. She had worked for the organisation since 1989.
The tribunal agreed that London Underground had restricted Webb’s right to freedom of speech when it dismissed her for the Facebook posts, but felt this decision was justified as the posts had deeply offended other staff members and presented a reputational issue for the organisation.
However, it was concerned about the respondent’s attitude towards the trade union rep.
Its judgment said: “In Mr Naughton’s and Mr Howarth’s case, it was apparent that there was a certain level of antagonism created by Mr Morris’ determination to argue his client’s right to free speech as a justification for her posts.
“Unfortunately, the managers received limited assistance when dealing with the article 10 point. What happened was that the various managers contacted the legal department. So far as we can ascertain, they were each told to get on with the hearings and apply the policies, with little if any further advice.”
It added the “prevailing attitude towards Mr Morris… is part of a more fundamental problem with the appeal hearing which was chaired by Mr Howarth, who we find was ill-equipped to conduct this type of hearing”.
“He had rigid ideas about the merits of the case, and how he should prepare for and conduct the appeal, which were in our view erroneous. He admitted with candour that he had not read any of the material generated by the investigation save for the four main posts. More worryingly, when put to him, he could not see how that might be an obstacle to reviewing the decision to dismiss,” the judgment said.
The tribunal found Webb’s dismissal was unfair, but her compensation for this was reduced by 75% because of her “blameworthy” conduct. London Underground was ordered to pay £3,564.25 for unfair dismissal and a £3,720.45 gross sum for unpaid holiday entitlement. The tribunal rejected her claim of race discrimination.
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Fiona Brunskill, Transport for London’s chief people officer, said: “We do not tolerate any kind of discrimination and will continue to ensure that TfL is a welcoming place to work.”
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