Labour & European Law Review Weekly Issue 437 16 September 2015
Employees need to take care when posting comments about work on social media. The Employment Appeal Tribunal held in British Waterways Board v Smith that it was fair to dismiss an employee who made derogatory statements about his employer on Facebook, even though the comments had been posted two years earlier and he could show that his security settings had been switched from private to public.
Mr Smith was required to work a rota which involved being on standby for seven days, one week in every five during which time he was not allowed to drink alcohol. Mr Smith made a number of complaints in 2012 and 2013 about the work that he was asked to do. Following a visit to occupational health, a mediation meeting was arranged with his supervisors for 23 May 2013.
However, when Mr Smith turned up for the meeting he was told he was being suspended pending an investigation into comments he had allegedly made on his Facebook page. These included derogatory statements about his supervisors and one post that he had been drunk while on standby. He admitted making the comments, but insisted his page must have been hacked and provided a screen shot to show that his security settings had been switched from private to public. He explained that most of the comments were banter and that he had not in fact been drinking when on standby.
Following a disciplinary hearing, he was summarily dismissed in June 2013 for gross misconduct.
The tribunal found that the investigation carried out by the company was reasonable and that they had a genuine belief, held on reasonable grounds that Mr Smith made the comments on Facebook.
However, despite those findings, it concluded that the decision to dismiss did not fall within the band of reasonable responses as the dismissing manager did not consider any of the mitigation put forward by Mr Smith. For instance, the fact that the company was previously aware of the comments; that he had eight years unblemished record, there were no issues about his performance; and the fact that the comments were part of the “banter” on Facebook.
The tribunal also found that the dismissing manager had not taken into account the fact that there was no emergency on the night and therefore no risk, that the comments were historic and that in the three years since they were made he was not a risk and could be trusted in his work and whilst on standby.
The EAT, however, disagreed. It found that the dismissal was fair because the tribunal had substituted its own view for that of the employer. In other words, it had not asked whether what the employer did was fair but asked instead what it would have done, while making up its own findings of fact.
For instance, it referred to the Facebook entries as historic but got the dates wrong, stating that it was three years between the incident and the disciplinary hearing when it was in fact two. It found that there was no emergency on the night when Mr Smith was supposed to have been drunk, and so no call out. On that basis it decided there was no impact on colleagues, and no risk to life and property. It drew an inference that the respondent had no difficulty with employees drinking when on standby. These were all findings made by the tribunal “when it had no business to do so”.
Likewise it was not for the tribunal to decide whether the dismissing manager had given weight to matters which it regarded as mitigatory. Instead, its role was to decide if the decision to dismiss was within the range of reasonable decisions open to the company in light of the investigation it had carried out.
Cases of dismissal for social media attract a lot of attention yet the same rules apply as for other cases where an employee is dismissed for misconduct and whether a dismissal is fair or unfair will depend on the particular facts.