The Employment Appeal Tribunal found that a dismissal was fair following derogatory comments made against an employer on Facebook.
This is a warning for employees in relation to both the use & control of social media in the work place, whether it’s accessed during or outside work hours.
In the authority of British Waterways Board v Smith, the Employment Appeal Tribunal has overturned the Employment Tribunal’s first instance decision and has clarified that it was fair for an Employer to dismiss an employee who made derogatory comments about them and his job on Facebook.
The facts of the case
Mr Smith worked for Scottish Canals as part of team responsible for the maintenance and general upkeep of canals and reservoirs. Mr Smith made many complaints about his working conditions and raised a formal grievance with his Employer.
An initial mediation hearing was arranged. However, this was suspended to address an issue around derogatory comments that Mr Smith had posted on Facebook two years earlier. These comments were littered with swear words and indicated that Mr Smith was drinking alcohol whilst on duty.
Mr Smith was dismissed for gross misconduct on the basis of the derogatory statements made about Scottish Canals and for also stating that he was drinking alcohol whilst on duty. Mr Smith appealed and the decision to summarily dismiss was upheld. Mr Smith then issued unfair dismissal proceedings.
The Employment Tribunal at first instance held that Mr Smith’s dismissal was unfair and that whilst the Employer had followed a fair procedure, the decision to dismiss fell outside the band of reasonable response.
The Employment Tribunal also considered the fact that the Employer had known about the derogatory comments on Facebook for some time (two years) and had also failed to consider any relevant mitigating factors for example Mr Smith’s unblemished work record. In relation to drinking alcohol whilst on standby incident, the Employment Tribunal found that there was no risk to life or property on the night that Mr Smith had been allegedly drinking. Scottish Canals then appealed.
The Employment Appeal Tribunal allowed the appeal and held that the Employment Tribunal had substituted its own view for that of the Employer when it held that it did not give weight to mitigating factors.
It also held that the Employment Tribunal had made its own findings of fact in relation to Mr Smith drinking alcohol whilst on duty, by suggesting that the incident was not of risk to anyone else.
The EAT found that such cases fall to be determined according to the ordinary principles of law and held that Scottish Canals had carried out a procedurally fair investigation, and that it had reasonable cause to lose confidence in Mr Smith, and that the decision to dismiss for gross misconduct was fair.
It should be noted that there was a significant delay on the part of the Employer in responding to Mr Smith’s actions in posting these derogatory comments on Face Book. The Employment Appeal Tribunal failed to consider this point however it is recommended that as soon as any form of misconduct is discovered, prompt action should be taken.
This case also serves as a timely reminder to Employers to have best practice and clear social media policies in place which define what is and what is not acceptable in the use of social media and which sets out any disciplinary sanctions that may be implemented in the event of any breach.
If you would like more information speak to our Employment Solicitor, Steven Eckett on 020 7998 7777 or email him at firstname.lastname@example.org.