In a recent case heard in the Employment Appeal Tribunal (“EAT”), the dismissal of an employee who had posted derogatory remarks about his employer and his job on Facebook two years before was ruled to be fair. The employee’s arguments that his posts were untrue and merely ‘banter’ were rejected by the EAT who concluded that the employer was entitled to dismiss him for gross misconduct despite prior knowledge of the employee’s conduct.
Facts and Decision
In the case of British Waterways Board v Smith, Mr Smith had worked for BWB for over 8 years when he was summarily dismissed for gross misconduct in June 2013. Mr Smith was employed as part of a team that worked on a rota basis that meant employees were on standby during certain weeks and were not permitted to drink alcohol during these standby periods.
During Mr Smith’s employment he raised a number of grievances and mediation was arranged in 2013 to attempt to deal with the various issues. During the investigation process conducted prior to the mediation, BWB discovered that Mr Smith had posted entries on Facebook making crude comments about his managers and complaining about his work. These included the statement “going to be a long day I hate my work”. Mr Smith’s Facebook profile also contained a post stating “on standby tonight so only going to get half p****d lol”, seeming to imply that he had been improperly drinking whilst on standby duty in 2011. Mr Smith’s manager had known previously about the alcohol-related comment and discussed it with the company’s HR team; however no action was taken.
Mr Smith was subsequently dismissed following disciplinary proceedings on the grounds that the comments, whether true or not, had the potential to undermine the confidence that the public and other employees should have in Mr Smith, and left BWB open to public condemnation. Mr Smith appealed the decision internally, however this was unsuccessful and his dismissal was upheld.
The EAT overturned the decision of the Tribunal that Mr Smith had been unfairly dismissed, relying on the decision in Game Retail Ltd v Laws in determining that a case such as this involving Facebook fell to be determined using ordinary principles of law. The EAT ruled that the Tribunal had incorrectly substituted its own view when finding that BWB had not given relevant weight to mitigating factors and that the company’s decision to dismiss fell within the range of reasonable responses. BWB had been entitled to find that using offensive language to describe colleagues on Facebook amounted to gross misconduct and, as a fair procedure had been followed throughout, the dismissal must be deemed fair.
While the case will seem surprising to many (and it may well be appealed further) nonetheless it serves as another warning to employees of the dangers of posting work-related content on social media. The need to exercise caution with online activity appears to be particularly relevant to content that is publically accessible or is capable of being associated with an employer.
However, the case also serves as an important reminder to employers of the need to have a clearly-drafted and effective social media policy which sets out the standards of behaviour expected and the potential effects of non-compliance. In this case, as in earlier cases, the employer was able to rely on their internal policies to take strong disciplinary action (and ultimately dismiss) where they uncovered evidence of an employee posting inappropriate material online.