The massive increase in social media is certainly still creating issues for employers in the workplace. In a recent case it was held fair to dismiss an employee that had made derogatory comments about his employer on Facebook. This case is a useful reminder to employers of the importance of maintaining an effective social media policy and to employees of the importance of exercising caution when posting online.

The Facts

Mr S worked for the British Waterways Board (BW) as a manual worker from 1 April 2005 to 4 June 2013, when he was summarily dismissed for gross misconduct. Mr S was responsible for a team dealing with the maintenance and general upkeep of canals and reservoirs. The team worked on a rota pattern and was on standby for one week in every five, during which employees were not permitted to consume alcohol.

What did the social media policy say?

The social media policy prohibited “any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards and chat rooms).”

How and when were the comments found?

During his employment, Mr S raised a number of grievances. In May 2013, when a mediation was arranged to deal with those grievances, one of Mr S's managers supplied incriminating comments Mr S had made on his Facebook page to BW's HR team. The manager did so in order to demonstrate that the issues were not “one-sided”. In 2011, Mr S had posted a comment relating to drinking alcohol whilst on standby. Mr S's manager had known about this since 2012 and had discussed it with the BW HR team. The BW HR team had not raised them with Mr S or investigated them further.

The comment, and others found during a subsequent search by the HR team, referred to supervisors in derogatory terms and to Mr S drinking alcohol whilst on standby.

So what were the comments on his Facebook account?

“(i) chipper training today and supposed to go home after it w***** supervisor told the trainer to keep us as long as he could the f***** don’t even pay u for this s***"

"(ii) hard to sleep when the joys of another week at work are looming NOT"

"(iii) ha what joy, 2 sleeps til back to my beloved work NOT"

"(iv) good old bw cant wait to see all my friends again lol"

"(v) going to be a long day I hate my work"

"(vi) that’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings"

"(vii) why are gaffers such p*****, is there some kind of book teaching them to be total w******"

"(viii) on standby tonight so only going to get half p***** lol"

"(ix) im on vodka and apple juice first time ive tried it no to shabby"

"(x) [in response to the latter comments someone had noted the claimant was on ‘floor alert’ and asked if the claimant was going to let everyone drown, to which the claimant had responded] ‘just the c**** from Braid Square lol’."

Was Mr S dismissed?

At a disciplinary hearing on 4 June 2013, BW summarily dismissed Mr S for gross misconduct. BW found that Mr S had made derogatory comments about BW as an employer and that he had claimed to be drinking alcohol whilst on standby, bringing his capabilities into question and leaving BW open to condemnation in a public forum.

Mr S's internal appeal was unsuccessful.

What claims did he bring?

Mr S brought a claim for unfair dismissal.

What was the response of the Tribunal?

The tribunal found that Mr S had been unfairly dismissed. Although BW had followed a fair procedure, the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. This was because BW had not taken into account the mitigating factors of Mr S's unblemished service record and that BW had been aware of the comments for some time. In relation to the drinking alcohol whilst on standby incident, the tribunal found that there had been no emergency on the night in question (and therefore no impact on Mr S's colleagues and no risk to life or property) and that BW had not had any subsequent difficulty with employees drinking alcohol whilst on standby.  

Decision of the Employment Appeal Tribunal

The Employment Appeal Tribunal allowed the appeal, and substituted a finding that the dismissal was fair.

The tribunal had substituted its own views for that of the employer when it held that BW did not give weight to the mitigating factors. This was a matter for an employer to decide and BW's decision had been within the range of reasonable decisions open to an employer. Also, the tribunal had made its own findings of fact in relation to Mr S drinking alcohol whilst on call, by inferring that the incident had no impact and that BW had no issues with employees on standby drinking alcohol.

Comment/Action points

  • Make sure that you have an effective social media policy.
  • Although this case gives hope to employers that fail to respond to an employee’s  act of misconduct straight away  (as they will not necessarily lose the opportunity to take action at a later date), the safest advice would be to take swift action once misconduct has been found.
  • Don’t forget to take into account mitigating factors when considering a dismissal.