If an employee admits misconduct and makes derogatory comments about his or her employer on social media, can he or she be fairly dismissed?
This was the issue that arose in The British Waterways Board v Smith. Mr Smith was a manual worker who worked according to a rota schedule which prohibited him from consuming alcohol at certain times.
In the course of a grievance which Mr Smith raised, Mr Smith’s manager supplied comments that Mr Smith had made on his Facebook page. These comments included an admission that Mr Smith had drunk alcohol whilst prohibited from doing so, and various statements criticising his supervisors and British Waterways.
Mr Smith was summarily dismissed, despite some of the comments being over two years old and some being already known to British Waterways’ Human Resources team for over a year (in relation to which no action had been taken). Mr Smith brought a claim for unfair dismissal which was successful in the employment tribunal.
British Waterways appealed and the appeal was allowed – the dismissal was fair. The tribunal had substituted its own views for that of the employer and in fact, British Waterways’ decision was within the reasonable band of responses. This was despite the fact that:
- the misconduct which was the cause of the dismissal was a number of years old,
- the employer was aware of the misconduct a year earlier and had failed to take any action in relation to it and
- the employer deliberately searched for evidence of wrongdoing against the employee.
This case highlights that there may be more scope for an employer to discipline an employee even if there is a delay in taking action against him or her and even if the employer has gone on something of a “fishing expedition” in order to obtain evidence of misconduct. Employees beware!