Should derogatory comments posted on social media sites be treated differently from other forms of misconduct? This was the issue before the EAT in the recent case of The British Waterways Board -v- Smith after an employee was dismissed as a result of comments made on his personal Facebook page some 2 years earlier. Although the EAT found the dismissal to be fair, the case once again exposes the challenges which employers face in an increasingly public online world.
With Facebook users in the United Kingdom numbering well over thirty million and some fifteen million Twitter users, personal comments posted online which have an impact on the employment relationship are a growing concern.
The British Waterways Board (BW) had employed Mr Smith since April 2005 to work in a team whose duties were the maintenance and upkeep of canals and reservoirs. BW had in place a rota system which obliged Mr Smith to be on stand-by for one week in every five. During the stand-by period, he was not allowed to consume alcohol.
At some point before Christmas 2012, one of Mr Smith’s supervisors alerted BW’s HR department that Mr Smith had posted certain negative comments on Facebook about them and his work for BW. Being busy, the HR department took no action at the time. In May 2013, following a grievance raised by Mr Smith, Mr Smith’s supervisor e-mailed the HR department attaching the comments he had copied from Mr Smith’s Facebook page, apparently in order to show that the issues between BW and him were not just one-sided. The HR department investigated further, and uncovered further comments describing supervisors in derogatory terms and indicating that Mr Smith had been drinking while on stand-by. BW’s social media policy expressly forbade ‘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)’.
During the subsequent disciplinary proceedings Mr Smith admitted making the comments but said they were only ‘banter’ and that he had not actually been drinking on stand-by. Nonetheless, the chair of the disciplinary hearing found that the remarks had the potential to undermine the confidence which other employees and the public had in BW, and that being under the influence of alcohol and making offensive remarks on Facebook were unacceptable, a clear breach of BW’s policy and amounted to gross misconduct.
After appealing unsuccessfully against the decision to dismiss him, Mr Smith brought a claim for unfair dismissal before the employment tribunal. The employment tribunal upheld Mr Smith’s claim on the basis that the decision to dismiss Mr Smith fell outside the band of reasonable responses that a reasonable employer might have adopted in the situation. On appeal the EAT subsequently overturned this decision on the basis that the employment tribunal had wrongly substituted its own view for that of BW.
The EAT’s decision
The EAT helpfully clarified that it was accepted that the posting of entries on Facebook by an employee on his personal computer could be a matter which resulted in disciplinary action by his employer if the employer or his work were mentioned. It stated there is no need for special rules in respect of cases relating to the misuse of social media and that ordinary principles of law applied in all cases.
This approach is consistent with the previous EAT decision of Game Retail Limited -v- Mr C Laws in November 2014 which was reported as being the first case to come before the EAT relating to the misuse of Twitter. In that case the EAT declined to provide general guidance in respect of such cases. It did however confirm that the same legal principles of unfair dismissal will apply in those cases and that questions to be determined by an employment tribunal will be fact-sensitive in social media cases as much as other types of cases.
Whilst these cases usefully clarify the approach to be taken by employment tribunals when considering cases involving the misuse of social media they do not provide any particular guiding principles for employers when handling such issues.
Relevant considerations to any such cases are likely to be the nature and seriousness of the alleged misuse, any previous warnings for similar misconduct in the past and any actual or potential damage to the employer’s business, such as customer relationships. However, one of the most important factors will be whether the employer had a social media policy which their staff were aware of. Employers seeking to maximise their protection against taking action to deal with this type of behaviour should ensure that they have a social media policy which is tailored to their business and regularly reviewed to adapt to emerging technology.