Mr T McAlpine v Litigant in person Sodexo Justice Services (Sodexo Limited) — 2019

Mr T McAlpine was employed from 24 November 2008 as a Prisoner Custody Officer and later promoted to Senior Prison Custody Officer at HMP Addiewell. The respondent suspended him on 1 June 2018 after an anonymous intelligence report alleged that he had posted racist comments on Facebook on 29 May 2018. The claimant said the comments were quotations from Tommy Robinson and asserted that the screenshots relied on by the respondent had been altered, but he was unable to explain the differences between the screenshot versions or identify where the quotations had come from.

The tribunal found that the respondent carried out a reasonable investigation through Mr McClure, Mrs Anderson and Mr Whitehead, including interviews, consideration of the screenshot versions, metadata analysis and other IT testing. It accepted that Mrs Anderson genuinely believed the claimant had written the comments himself and that the claimant had not shown that the comments were clearly identified as quotations. The tribunal also found that Mr Whitehead reasonably concluded that further technical investigation would not change the question of whether the words used were offensive.

Applying s.98 ERA 1996, BHS v Burchell, Iceland Frozen Foods v Jones and the ACAS Code, the tribunal held that the reason for dismissal was misconduct, which was a fair reason, that a fair procedure had been followed, and that dismissal fell within the band of reasonable responses. It also rejected the claimant's complaint that the penalty was disproportionate by reference to another officer's case, finding the matters sufficiently different. The unfair dismissal claim was therefore dismissed and no award was made.