British Waterways Board t/a Scottish Canals v Smith UKEATS/0004/15/SM

Why care?

In order to be fair, a dismissal must be for one of the five potentially fair reasons under s98(1) Employment Rights Act 1996 (one of which is conduct), and the employer must have followed a fair procedure. In conduct cases, that procedure must include the employer establishing that, at the time of the dismissal, it believed the employee to have committed misconduct, that it had reasonable grounds for doing so, and that it had carried out as much investigation as was reasonable in all the circumstances (British Homes Stores v Burchell). An employer must be able to show that the decision to dismiss fell within the band of reasonable responses open to a reasonable employer in those circumstances and in that business. If an employer’s response falls into that category, it is not for the tribunal to replace its own view for that of the employer.

In this case, the EAT had to consider whether an employee who was dismissed for gross misconduct in reliance on comments he had made on Facebook up to two years previously was fairly dismissed.

The case

The Claimant, who worked for the Respondent for eight years until his summary dismissal for gross misconduct in June 2013, was a member of a team of manual workers who worked a seven day rota, and were on standby for seven days one week in every five.

The Respondent’s disciplinary policy stated that serious breaches of its policies could result in dismissal for gross misconduct. The social media policy prohibited “any action on the internet which might embarrass or discredit [the Respondent] (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”.

The Respondent’s HR team proposed a mediation meeting between the Claimant and his supervisors in May 2013 to resolve a grievance he had brought, but before the meeting one of his managers, Mr McRoberts, provided to HR copies of comments the Claimant had made on Facebook some time previously, including a comment in 2011 which related to drinking alcohol whilst on standby. Mr McRoberts said that he thought he had seen the comments prior to Christmas 2012 and he had told HR of the comments before (but HR had not investigated or discussed them with the Claimant because they were too busy), and provided screen shots because he was aware of the mediation meeting and wanted to prove that matters were not “all one sided”.

The Employment Tribunal noted a number of comments by the Claimant, including: “chipper training today and supposed to go home after it w/* supervisor told the trainer to keep us as long as he could the f/* don’t even pay u for this s/*”; “hard to sleep when the joys of another week at work are looming NOT”; “ha what joy, 2 sleeps til back to my beloved work NOT”, “good old bw cant wait to see all my friends again lol”; “that’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings” and “ on standby tonight so only going to get half pissed lol”.

The Claimant was suspended from work. During the subsequent investigation, the Claimant admitted making the comments above but said that it was not intended to offend, and that he had been “indulging in banter”. He said it was common practice amongst the men to “slag off” the person on standby, and that he had not in fact been drinking; he also alleged that his Facebook account had been hacked. He also said that he had been bullied and harassed for eight years and “he felt it was convenient that he had been suspended on the day that a meeting had been planned to investigate his complaints”.

Whilst it was accepted the Claimant was a good employee who had always received good performance reviews, the investigating manager concluded that there was evidence that trust between his employer and those managing him had been broken by the comments and that, as the remarks were available for public viewing “therefore are likely to damage the reputation of his employer and manager. By publically making remarks about being under the influence of alcohol whilst on standby duty, he has declared this to be the case, which would be a risk to public health…”

At the disciplinary hearing, Mr Lamont (the chair), found that the comments regarding his supervisors and team leaders were highly offensive and the Claimant apologised. Mr Lamont found that the comments about alcohol were specific and elaborate, could be viewed by any member of the public and that anyone reading them would lack confidence in his capability. Whether or not the comments were true, they had the potential to undermine confidence in the Claimant’s capability in an emergency and that the comments would have left the Respondent open to public condemnation. The Claimant was dismissed for gross misconduct.

Two other employees who had made Facebook comments were also disciplined. One received a final written warning; the other was given an oral warning for inoffensive Facebook posts. Mr Lamont’s reasoning for the different treatment of the three employees was that the Claimant had made comments about alcohol, and Mr Lamont found that he had been drinking.

The employment tribunal found the dismissal was unfair, because although the procedure was otherwise fair the Respondent had failed to consider properly the Claimant’s mitigation, in particular that his Facebook account had been hacked and his security settings changed so that he did not understand his comments to be public; that Mr McRoberts had had sight of the comments for some time and taken no action; that Mr McRoberts had only come forward with the Facebook comments when the Claimant raised his grievance, and that Mr Lamont had accepted the team was unhappy but not taken this into account; that the Claimant had 8 years unblemished service; that it was “banter” and common practice when someone was working standby; the nature of Facebook as a social media site used for chat “and frequently involves people making claims which are either exaggerated or simply not in fact true” and that he had apologised.

The Respondent appealed. The EAT allowed the appeal. It found that the tribunal had substituted its own views for that of the employer when it held Mr Lamont had not given any weight to the mitigating factors. The tribunal had made its own findings in fact about the existence or otherwise of risk (it inferred that, because there was no actual emergency and he was not called out that night, the incident had no impact; it also inferred that the Respondent had no issues with employees drinking alcohol on standby. The ET had not considered the Respondent’s views about what did happen, and asked itself if the Respondent’s reaction in the light of those views was within the range of reasonable responses). The EAT found that the tribunal had criticised the weight put on the mitigating factors by Mr Lamont, rather than that he had refused to consider it – if they had indeed found he had not done so, it would not have made the other findings about the fair procedure. In any case, even if Mr Lamont had not done so properly, the decision maker at the appeal had taken mitigation into account. The assessment of the relevance of mitigation is a matter for the employer and the Respondent’s decision was within the range of reasonable responses open to it.

Rather than remitting the case to another tribunal, the EAT substituted a finding that the dismissal was fair. On the facts already determined by the tribunal, the only answer was that the decision was not unfair.

What to take away?

The EAT agreed with the EAT judgment in Game Retail Ltd v Laws (2014), a case concerning Twitter, where the EAT held that tweets were not private and it held a tribunal should ask whether the employer had been entitled to reach the conclusion that the tweets might have caused offence. In both cases, the EAT declined to give specific guidance on social media cases. Social media cases are not special: they fall to be determined in accordance with the ordinary principles of law applied in all cases, and in particular the range of reasonable responses test.

The case shows the importance of well-drafted social media and disciplinary policies and demonstrates that, even if an employer has known of an act of misconduct for some time, it will not necessarily lose the opportunity to take action later on (in this case, two years).

In Williams v Leeds United FC earlier this year, an employee sent “obscene and pornographic emails to friends and a younger female colleague from his work email address. Five and a half years later, he was made redundant and given notice (there was a dispute as to his entitlement to notice which could be up to 12 months). The employer hired a private detective to investigate his behaviour to see if there had been any repudiatory breaches and discovered the emails, then dismissed for gross misconduct. The High Court agreed with the employer that his actions were a breach of mutual trust and confidence and amounted to a repudiatory breach of contract, and the employer was entitled to dismiss without notice. Unlike the British Waterways case, it was a straightforward matter of contract and unlike unfair dismissal, questions of fairness and reasonableness do not apply.