Mr Jones (Counsel) For the v Respondent — 2023

The tribunal found that Ms Webb, a long-serving London Underground manager, posted a series of Facebook comments in June 2020 about George Floyd, the Black Lives Matter movement, Lee Rigby, and related matters. It accepted that the posts were offensive, inflammatory and racially divisive, and found that complaints from colleagues were genuine. It rejected her argument that she would have been treated differently had she been black, and held that the respondent acted because of the misconduct it considered those posts to amount to, not because of race.

The race discrimination claim failed after the tribunal concluded that the comparator evidence was not materially helpful. It found that the comparator cases involved different posts, different circumstances, different levels of contrition, and in some cases different decision-makers. The tribunal also found no reliable evidence that any of the managers involved acted with racial motivation, and it considered the respondent's reactions to the posts to be genuine.

On unfair dismissal, the tribunal held that the principal reason for dismissal was misconduct. It found that Article 8 was not engaged because Ms Webb had no reasonable expectation that the Facebook posts were private in context, but that Article 10 was engaged. The restriction on her expression was held to be prescribed by the respondent's policies and justified and proportionate because of the respondent's reputation, the impact on other employees, and the public and workplace reaction to the posts.

Even so, the tribunal found the dismissal unfair because of flaws in the procedure, particularly at appeal stage. It found that the appeal chair had not properly read the material, had not approached the hearing with an open mind, and had effectively pre-determined the outcome. The tribunal also criticised the respondent's handling of the claimant's representative and its failure to engage fairly with the Article 10 arguments and mitigation, including her long service and mental health background. The tribunal nevertheless held that dismissal fell within the band of reasonable responses and did not change the unfair dismissal finding.

The tribunal also upheld the holiday pay claim. It found there had been a misunderstanding about Ms Webb's request to travel abroad while on sick leave, and that the respondent could not unilaterally treat the period as annual leave. It held that three weeks' holiday entitlement had been wrongly recorded, but no monetary figure was fixed in this judgment and remedy was left to a later hearing.