n the case of The British Waterways Board, Trading as Scottish Canals v Smith, the Employment Appeal Tribunal (EAT) held that the employer had fairly dismissed an employee who had posted derogatory comments on Facebook about his employer, his colleagues and suggesting that he had consumed alcohol whilst on standby for work.
The Claimant was employed as a manual operative. He worked a seven-day rota and was on standby for work for seven days one week in every five. This required the Claimant to remain available to deal with any emergencies outside of normal working hours and to expressly refrain from alcohol during his time.
Between March 2012 and May 2013 the Claimant brought a number of grievances. Whilst investigating these grievances a member of the employer’s HR department was informed that the Claimant had made several offensive comments on Facebook about his colleagues in 2011, which was in contravention of the employer’s social media policy. It was also discovered that around that time the Claimant had indicated in other comments that he had consumed alcohol whilst on standby for work, which was in contravention of the employer’s policy on the consumption of alcohol whilst on standby. The Claimant’s Facebook page was set to public which allowed his employer to view his profile and print off as evidence the comments made.
The matter was investigated, the Claimant suspended and disciplinary action taken, resulting in the Claimant being summarily dismissed.
The Claimant brought a claim of unfair dismissal to the Employment Tribunal (ET) which found in his favour on the grounds that the employer had not taken the Claimant’s potentially mitigating circumstances into account, such as the Facebook comments being untrue and only banter, consistently good performance reviews, together with his unblemished employment record. In addition, the Facebook comments had been brought to the employer’s attention when originally posted, but were never investigated by the HR Department at that time. The employer appealed this decision.
The EAT overturned the ET’s decision. The EAT found that the employer had followed a fair and proper procedure and that it had a genuine belief that the Claimant had been under the influence of alcohol while on standby. The EAT decided that the ET had substituted its own views for that of the employer and had gone outside the scope of its duty by giving too much weight to the mitigating factors raised by the Claimant. The ET had not considered the severity with which the employer viewed the comments and the fact that they had lost confidence in the Claimant. The fact that the Claimant had not restricted his privacy settings on his Facebook profile allowed his employer to access his comments and as a result of this, the comments were viewed as more damaging to the employer given their public nature. Dismissal was therefore within the band of reasonable responses open to the employer, despite the fact that the misconduct was two years prior to dismissal and that the employer had been made aware of the comments at the time they were posted, but never took any action at that time.
It is important for employers to have a well drafted social media policy to help them address inappropriate social media activity by their employees. It is important also that the social media policy is communicated to employees to ensure they are aware of what standards and behaviour are expected of them. This case also demonstrates that failure to take immediate action in respect of misconduct will not necessarily prevent the employer from relying on the misconduct in later disciplinary proceedings. However, dealing with misconduct in such a way should be approached with caution as it will all depend on the circumstances of the individual case in determining whether any delay in bringing disciplinary proceedings was reasonable.