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The Employment Appeal Tribunal (EAT) has held that a dismissal for derogatory comments about an employer on Facebook was fair.
In British Waterways Board v Smith, Mr Smith was employed by the British Waterways Board (BW) as a manual worker for 8 years. As part of his job, Mr Smith worked on a rota where he was on standby for one week in every five. BW prohibited employees drinking alcohol when they were on standby. It also had a social media policy which prohibited: 'any action on the internet which might embarrass or discredit BW'.
During the investigation of a grievance raised by Mr Smith, Mr Smith's manager supplied HR with copies of pages from Mr Smith's Facebook account which included derogatory comments by Mr Smith about his supervisors. On receipt, the HR team investigated further and identified evidence that suggested that Mr Smith was drunk whilst on standby.
A disciplinary investigation subsequently took place and several other Facebook comments were identified, which were either derogatory about BW, supervisors and colleagues, or suggested that Mr Smith had been drinking on days when on standby.
Mr Smith's manager was aware of some of the comments and had previously raised them with HR (although he had not sent screenshots). HR had not investigated at the time because they were 'too busy'.
Mr Smith accepted that he made the comments but said that they were just 'banter' and he had not in fact been drinking. He also contended that his Facebook account had been hacked and changed from public to private.
At a subsequent disciplinary hearing the decision-maker concluded that, irrespective of whether the comments were true, the comments had the potential to undermine confidence in Mr Smith's ability to react in an emergency and left BW open to public condemnation. It was also decided that Mr Smith's actions were a clear breach of BW's policies and he was summarily dismissed for gross misconduct.
Mr Smith brought a claim for unfair dismissal to the Employment Tribunal (ET).
The ET found that, although the process BW followed was fair, the decision to dismiss Mr Smith was not within the band of reasonable responses which a reasonable employer would take. In particular, the ET found that BW failed to consider Mr Smith's points of mitigation.
Overturning this decision on appeal, the EAT found that as the ET accepted that a fair procedure had been followed, it must have concluded that BW had considered Mr Smith's points of mitigation. That being so, the ET had improperly substituted its own views for that of the employer. It held that the decision to dismiss was fair.
The very public nature of comments on social media means that the potential for reputational damage is significant. What assisted BW in this case was having very clear policies about the use of social media, being clear with employees about what is and is not acceptable. This case also highlights the importance of identifying and considering all points of mitigation when deciding on disciplinary action.
Whilst BW was able to show that the dismissal was fair in this case, even though it had been aware for (albeit had not yet investigated) the Facebook comments for a number of years, it would have been best practice to avoid delay in investigating concerns which come to an employer' attention - not least, in cases involving comments on social media - to avoid the potential for further reputational damage.