In British Waterways Board v Smith UKEAT/0004/15, the Employment Appeal Tribunal (EAT) had to decide whether it was fair to dismiss an employee who had made derogatory comments about his employer on Facebook two years before his dismissal, where his employer had been aware of the misconduct during this period.

Facts

Mr Smith worked for the British Waterways Board (BWB) as a manual worker from 1 April 2005 to 4 June 2013, when he was summarily dismissed for gross misconduct. BWB was responsible for inland waterways within Scotland and Mr Smith worked for a team responsible for the maintenance and general upkeep of canals and reservoirs. The team worked on a seven day rota pattern and was on standby for seven days one week in every five. During their standby period, workers were not permitted to consume alcohol.

In the course of preparing for a mediation in May 2013, which had been set up to try and resolve some grievances raised by Mr Smith, one of Mr Smith's managers supplied copies of pages taken from Mr Smith's Facebook account. This prompted further investigation, as they contained a number of comments made by Mr Smith (and two other employees), which referred to supervisors in derogatory terms. They also included a reference to Mr Smith drinking alcohol while on standby in 2012, which Mr Smith's manager had known about at the time and had discussed with BWB's HR team.

Mr Smith was subsequently suspended from work pending an investigation into the comments. At a disciplinary hearing on 4 June 2013, BWB summarily dismissed him for gross misconduct. BWB found, amongst other things, that the comments made regarding Mr Smith's supervisors and team leaders were highly offensive and inflammatory and, whether true or not, had the potential to undermine the confidence that other employees and the public would have in Mr Smith's ability to react to an emergency situation. Whilst there had been no emergency on the night in question, Mr Smith's comments on Facebook would have left BWB open to public condemnation. Being under the influence of alcohol and making offensive remarks on Facebook were unacceptable and a clear breach of BWB's policy, which amounted to gross misconduct.

Mr Smith's appeal against the decision to dismiss him was unsuccessful and he brought a claim in the employment tribunal (ET) for unfair dismissal.

Employment tribunal decision

The ET found that Mr Smith had been unfairly dismissed. Although BWB had followed a fair procedure, the decision to dismiss him fell outside the band of reasonable responses that a reasonable employer might have adopted in the circumstances. In particular, the ET concluded that the disciplinary manager had not considered any of the mitigation put forward by Mr Smith (including an unblemished service record and the fact that BWB had been aware of the comments for some time) and he had not considered any sanction other than dismissal. The ET also found that the disciplinary manager had failed to give consideration to the fact that the comments were historic, there had been no emergency on the night in question and there was no risk; the ET also found there was no evidence before it of BWB having difficulty with employees drinking while on standby. BWB appealed.

EAT decision

The EAT allowed the appeal and substituted a finding that the dismissal was fair.

It decided that the ET had substituted its own views for that of the employer when it held that BWB did not give weight to the mitigating factors. The EAT took the view that the ET had essentially criticised the weight the disciplinary manager had put on mitigation, rather than finding that he had refused to consider it. In any event, the EAT found that the appeal manager had taken mitigation into account.

The EAT considered there were a number of factors that suggested the ET had substituted its own view, including when it made findings about BWB's lack of problems with employees drinking on standby and the lack of risk to the public. The ET had not considered BWB's views about what did happen and asked itself if BWB's reaction in light of those views was within the reasonable range of responses. The EAT found that the decision to dismiss was within the band of reasonable responses.

Comment

This decision is a reminder to employers of the importance of maintaining an effective social media policy. This will place the employer in a stronger position to take disciplinary action in circumstances where employees are found to have posted negative or inappropriate comments online.

While this should be treated with caution, the case illustrates that where an employer has failed to respond earlier to an employee's misconduct this will not necessarily mean that the employer loses the ability to take action at a later date. In this case, the misconduct predated the dismissal by two years and there was evidence that the employer (including the HR team) had known about it for a significant period of time. Nevertheless, the EAT appears not to have criticised BWB for relying on this misconduct in order to dismiss Mr Smith.

Similarly the EAT did not seem to criticise BWB for the manner in which the Facebook material was obtained, which arguably was an attempt by Mr Smith's manager to search for evidence against him in the lead up to the mediation and in response to grievances having been raised by him. The manager concerned claimed it was to demonstrate that the issues at the mediation were not one-sided but employers carrying out a fishing expedition in similar circumstances need to be careful to ensure that an employee is not being victimised for raising a grievance. Lastly, the case is a reminder to individuals to be very careful about what they post on social media.