In this case the EAT considered whether it was fair to dismiss an employee who had made derogatory statements about his employer on Facebook when the employer had been made aware of the misconduct 12 months before the dismissal.

Facts

Mr Smith worked for the British Waterways Board (BW) as a manual worker from 1 April 2005. He worked for a team responsible for 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. BW's 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 or chat rooms)”.

Mr Smith raised a number of grievances in March 2012 and February 2013 concerning his treatment by his managers alleging bullying and harassment. He was not alone in this: there was a history in his team of employees raising issues about health and safety and how they were spoken to by their managers. In May 2013, when a mediation was arranged to deal with those grievances, one of Mr Smith's managers supplied incriminating comments that Mr Smith 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 Smith had posted a comment relating to drinking alcohol while on standby as well as posting other comments referring to his supervisors in derogatory terms. He did not specifically mention BW in these posts.  Mr Smith's manager had known about this since 2012 and had discussed it with BW's HR team, who had not raised them with Mr Smith or investigated them further.

When Mr Smith arrived at the mediation meeting, he was suspended from work pending an investigation into the comments recovered from his Facebook account. At a disciplinary hearing Mr Smith accepted he had made the comments, and apologised for them, but said they were banter and he had not intended to offend anyone. He also said that it was common practice to "slag off" the person who was on standby and that he had not in fact been drinking. He argued that his Facebook page had been hacked as he had set his settings to private. Mr Smith was summarily dismissed for gross misconduct on the basis that he had made the derogatory comments and by claiming to be drinking alcohol while on standby, his capabilities had been brought into question such that BW had lost confidence in him and they had left BW open to condemnation in a public forum. Mr Smith appealed. Mr Smith maintained that: the decision to dismiss had been too harsh given his unblemished record, his comments could not damage BW's reputation as he had not mentioned it by name, and he was not under the influence of alcohol. He also produced further evidence in the form of a rota which purported to show he was not on standby on the day in question. However, he had swapped a shift with a colleague and was on standby after all.  His internal appeal was unsuccessful. The appeal chair felt that Mr Smith was in a position of trust while on standby which had been abused and the fact that one of his arguments on appeal turned out to be false damaged his credibility even more.  He brought a claim in the tribunal for unfair dismissal.

The tribunal found that Mr Smith 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 Smith's unblemished service record and that BW had been aware of the comments for some time. In relation to the drinking alcohol while on standby, the tribunal found that there had been no emergency on the night in question (and therefore no impact on Mr Smith's colleagues and no risk to life or property) and that BW had not had any subsequent difficulty with employees drinking alcohol while on standby. BW appealed to the EAT.

The EAT found that Mr Smith's dismissal had been fair, and the tribunal had substituted its own view for that of BW when it held that BW did not give weight to the mitigating factors. This was a matter for the employer to decide.

What this means for employers

This is a surprising decision given the time lag between the comments made on Facebook by Mr Smith and his dismissal, and because the employer had been aware of the comments at a much earlier date but taken no action.  The employer was given a "second bite of the cherry" at dealing with the Facebook comments, including comments indicating he had been drinking on duty. Readers could be forgiven for thinking that Mr Smith had been retaliated against by his manager who deliberately searched for evidence against him in response to his grievances. The EAT made no criticism of BW for this.  The fact they had carried out a procedurally fair dismissal, including a rigorous appeal, certainly assisted BW in establishing that the tribunal had mistakenly substituted their own view of whether the dismissal was fair.  

The British Waterways Board v Smith