The Employment Appeal Tribunal (“EAT”) has held in British Waterways Board v Smith that the dismissal of an employee who made derogatory comments about his employer on Facebook was fair.  It did not matter that the derogatory comments had been made  two years prior to the dismissal, or that the employer had been aware of it.  

Mr Smith worked for the British Waterways Board (“BWB”) in a team responsible for the maintenance and general upkeep of canals and reservoirs.  He was on standby for one week in every five, during which he was not permitted to drink alcohol.  

During his employment, Mr Smith raised a number of grievances.  When a mediation meeting was arranged to deal with these, one of Mr Smith’s managers  produced incriminating comments made by Mr Smith on his Facebook page, to show both sides of the story.  Mr Smith’s manager had known about one of these comments back in 2012,  had discussed it with the HR team but had not investigated the matter further.  Among the negative comments were references to his supervisors in derogatory terms and to Mr Smith drinking whilst on standby: “going to be a long day I hate my work”, “that’s why I hate my work for those reasons its not thework it’s the people who ruin it nasty horrible human beings”, “on standby tonight so only going to get half p***** lol”.  

On arrival at the mediation meeting, Mr Smith was suspended pending further investigations and was summarily dismissed at a disciplinary hearing on 4 June 2013 for gross misconduct.  The derogatory comments about BWB and Mr Smith’s claims to be drinking alcohol while on standby brought his capabilities into question and left BWB open to condemnation in a public forum.  The Employment Tribunal (“ET”) found that Mr Smith had been unfairly dismissed but, on appeal, the EAT substituted a finding that the dismissal was fair.   

The EAT held that the ET had substituted its own views for that of the employer when it held that BWB did not give weight to mitigating factors, such as the fact that the derogatory comments had been made two years previously and the employer had known about them for some time.  Further, the EAT criticised the ET for making its own findings of fact in relation to Mr Smith drinking alcohol whilst on standby, by inferring that BWB had no problems with employees drinking while on standby, and the lack of risk to the public.  In assessing the reasonableness of an employer's decision, a tribunal must not substitute its view for that of the employer and drinking while on standby in this case was plainly “gross misconduct” rather than “misconduct”.  The EAT therefore held that BWB’s decision fell within the range of reasonable responses open to an employer.   

This case demonstrates that an employer that has failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date.  Further, the employer in this case deliberately searched for evidence against the employee and effectively found material on which it based its summary dismissal by means of a “fishing expedition”, without rebuke from the tribunal.  

The EAT has still not set out any general guidance for employers tasked with addressing  misconduct involving social media, but it is clear that a well-drafted social media policy and effective communication of the same is key, and could be crucial in defending against any argument that a dismissal was unfair.  BWB’s disciplinary policy provided that it could dismiss employees for gross misconduct and cited serious breaches of its policies as an example.  BWB’s social media policy also prohibited “any action on the internet which might embarrass or discredit BWB (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”.  These policies provided BWB with strong grounds to defend against Mr Smith’s claim for unfair dismissal.  

For employees this case serves as a further reminder of the importance of exercising caution when posting online.