Employment Review: September 2015 – Dismissal for making derogatory comments about employer on Facebook

In this case, the claimant (Mr Smith) who was employed by the British Waterways Board (BW) was summarily dismissed for gross misconduct in June 2013, because he had posted comments on Facebook back in 2011:

• Publicly making remarks about being under the influence of alcohol whilst on standby duty (despite not being permitted to consume alcohol during his standby period).
• Referring to his supervisors in derogatory terms

The comments did not become the subject of any disciplinary proceedings until 2013, when some of the postings were used as evidence during an investigation into the claimant’s grievance dated 25 February 2013 by one of the individuals the claimant had complained about (to show that the issues were not all one sided). A subsequent search by the HR team revealed further comments and disciplinary action was instigated against the claimant.

The individual complained of and various members of BW’s HR team had been aware of the postings prior to Christmas 2012, but no investigation or action had been taken against the claimant at that time, as the HR team were “too busy”.

BW’s social media policy stated that “any action on the internet which might embarrass or discredit BW” could expose BW to unwarranted risks and was therefore disallowed. BW’s disciplinary policy listed examples of gross misconduct which included serious breaches of BW’s policies and procedures.

The Employment Tribunal (ET) found that the claimant had been unfairly dismissed because BW had not considered any mitigation put forward by the claimant such as his 8 years’ service and an unblemished record, that BW had known of the comments for some considerable time and taken no action, that the comments were historic and, in relation to the alcohol consumption whilst on standby duty, that there was no emergency on the night in question and that there was no risk.

On appeal, the Employment Appeal Tribunal (EAT) allowed the appeal and held that the dismissal was fair. The EAT found that the ET had substituted its own view for that of the employer and made its own findings of fact about the existence or otherwise of risk, and criticised the weight BW put on mitigation rather than finding that BW had refused to consider it. It found that BW did take mitigation into account and that the dismissal was not unfair.

Comment

Conduct outside of the workplace and particularly employees’ use of social media has increasingly become of relevance to employers in recent years. This case is one of many that highlights the importance of having a well drafted social media policy which clearly sets out the employer’s expectations in relation to social media use, and the possible sanctions if the policy is breached.

It is of interest to note that in this case, the acts of misconduct were previously known to the employer for a considerable period of time before any disciplinary action was taken, and these appear only to have been instigated after a deliberate search for evidence against the employee after he had raised a grievance. Employers must nevertheless be mindful not to carry out a “fishing expedition” against employees otherwise possibly run the risk of being found not to have carried out a proper and impartial investigation (i.e. not a fair procedure).

Reference: The British Waterways Board v Smith [2015] UKEAT/0004/15, 3 August 2015

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