In The British Waterways Board v Smith, the EAT held that an employer had fairly dismissed an employee who posted comments on Facebook expressing offensive views of his colleagues and suggesting that he had consumed alcohol whilst on standby for work. The fact that some of the comments were made in 2011 and that the employer was made aware of these comments around that time, but did not summarily dismiss until 2013, was irrelevant. Dismissal for gross misconduct was within the range of reasonable responses available to the employer.

Background

In order to demonstrate that a dismissal is fair an employer must show that it was for one of the potentially fair reasons set out in the Employment Rights Act 1996 (ERA).  Section 98(2) of the ERA, provides that misconduct is a potentially fair reason for dismissal.

A misconduct dismissal will only be fair if at the time of the dismissal the employer: (i) believed the employee to be guilty of misconduct; (ii) had reasonable grounds for holding that belief; and (iii) had conducted as much investigation as was reasonable in the circumstances.  Further, the employer must demonstrate that the decision to dismiss fell within the range of reasonable responses available to the employer.

In this case, the Employment Tribunal (ET) had to decide whether an employer had fairly dismissed an employee for gross misconduct for having made comments on social media that expressed offensive views of his colleagues and which suggested that he had consumed alcohol whilst on standby for work.

Facts

The Claimant commenced employment with the Respondent on 1 April 2005 as a manual operative employed in the maintenance of canals and reservoirs. He worked a seven-day rota and was on standby for work for seven days one week in every five.

Over a period from March 2012 to May 2013 the Claimant raised several grievances in relation to the behaviour of his supervisors and health and safety issues. Whilst organising a mediation in respect of these grievances, Ms McMillan (M), a member of the Respondent's HR Department, was informed that the Claimant had made several offensive comments on Facebook about his colleagues. When this was investigated by M, she discovered that the Claimant had also suggested in other comments that he had consumed alcohol whilst on standby for work. The Claimant's Facebook profile was set as "public", enabling M to view and print the relevant comments.

The Claimant was suspended pending an investigation. The investigation found the comments to be in contravention of the Respondent's social media policy, which prohibited "any action on the internet which might embarrass or discredit BW", and the Respondent's policy on the consumption of alcohol whilst on standby.  It was also determined that it was possible to identify the Respondent from the comments, and that as the comments were public they were likely to damage its reputation.  The Claimant was dismissed for gross misconduct and went on to bring a claim for unfair dismissal.

The ET held that the Claimant had been unfairly dismissed, as the reason to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. This was concluded on the basis that the Claimant had an unblemished service record, consistently good performance reviews and had not imposed risk on the Respondent or others.  Further, the offending Facebook comments had been brought to the attention of the  HR department when originally made, but had never been investigated.

EAT decision

The EAT overturned the decision of the ET, holding that the dismissal was fair.  The EAT decided that the ET had gone outside the scope of its duty and had substituted its own views for that of the Respondent. The EAT determined that the ET had given too much weight to the mitigating factors raised by the Claimant and had not adequately taken into account the severity with which the Respondent viewed the comments and the resultant impact on their confidence in the Claimant.

Comment

For employees, this case serves as a warning to be mindful of the content of social media posts and who is able to access this information. The fact that the Claimant had not restricted his privacy settings allowed the Respondent to access his comments and they were viewed as more damaging given their public nature.

For employers, this case highlights 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.  Further, a well-drafted social media policy will help an employer address inappropriate social media activity.

The British Waterways Board v Smith