The Employment Appeal Tribunal has recently considered a case where an employee was dismissed for making derogatory comments about his employer on Facebook. While this may not, at first glance, appear to be particularly surprising, the comments were 2 years old and the employer had been aware of them since he posted them. Notwithstanding this, the EAT found that the employee’s dismissal was fair. This case is a reminder of the need for employers to have clear and robust social media policies. This is something that the team at Turner Parkinson can help you with.
Mr Smith worked for the British Waterways Board from 1 April 2005 to 4 June 2013. His job involved being responsible for the maintenance and general upkeep of canals and reservoirs. He worked on a rota pattern, which involved being on standby for 1 week of every 5. During his standby week, he wasn’t permitted to consume any alcohol. During the course of his employment he raised a number of grievances. In order to try and resolve these, his employer arranged for a mediation meeting to take place. As part of the mediation process, his Managers produced comments that Mr Smith had posted on his Facebook page. These comments were negative and derogatory to his supervisors and referred to him drinking whilst on standby. The comments included:
- “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 you [?] for this s***
- Hard to sleep when the joys of another week at work are looming NOT. Ha what joy, two sleeps till back to my beloved work NOT
- Going to be a long day, I hate my work
- That’s why I had my work for those reasons, it’s not the work but the people who ruin it nasty horrible human beings
- Why are gaffers such p****, is there some kind of book teaching them to be total w*****
- On standby tonight only going to get half p*** lol
- I’m on Vodka and apple juice first time I tried it no too shabby
When Mr Smith got to the mediation meeting, he was suspended pending an investigation into his comments.
At the disciplinary hearing on 4 June 2013 he was summarily dismissed for gross misconduct. This was on the basis that he had made derogatory comments about his employer and had admitted to drinking alcohol whilst on standby. The employer found that these actions brought his capabilities into question and left it open to condemnation in the public forum. Mr Smith unsuccessfully appealed against his dismissal and ultimately brought a Tribunal claim. At the first instance, the Employment Tribunal upheld his claim and found that the dismissal was unfair. However, on appeal, the Employment Appeal Tribunal overturned this decision and found that the dismissal was, in fact, fair.
The EAT found that the Tribunal had substituted its own views for that of the employer when reaching the decision that his dismissal was unfair. In addition, they found that the Tribunal had made its own findings of fact with regard to Mr Smith drinking whilst on standby, by inferring that the incident had no impact and inferring that his employer had no problems with the employee’s drinking whilst on standby. Instead, the EAT found that what Mr Smith had done was clearly an act of gross misconduct and that his dismissal was within the range of reasonable responses open to the employer. As such, the dismissal was fair.
This case shows that even though the employer had failed to act on Mr Smith’s misconduct at the time, they could still take action at a later date. Surprisingly, the employer faced no criticism from the EAT for the fact that they failed to act on the alleged misconduct promptly, even though they had been aware of it for a considerable time. In addition, there was no criticism from the EAT for the fact that the evidence of Mr Smith’s misconduct came to light as part of a deliberate search by the employer for evidence against him.
The EAT commentary also highlighted the importance of a clear Social Media Policy. The employer’s Disciplinary Policy expressly cited breaches of its Social Media Policy as examples of gross misconduct and the Policy itself prohibited “any action on the internet which might embarrass or discredit British Waterways Board (including defamation of third parties, for example, by posting comments on bulletin boards or chatrooms)” These gave the employer strong grounds for defending the claim against it. Of course, the case serves as a timely reminder to employees who are posting on line that they need to be careful what they say about their employer as their actions may come back to haunt them.
Turner Parkinson is able to advise on robust and effective Social Media Policies; please contact any member of the Employment Team if you require further advice on this issue in the context of your particular business.