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Dismissal of employee for historic Facebook posts was fair

BY Daniel Gorry
Employment Law & HR
BG Purple

The past week has seen the first Employment Appeal Tribunal decision on the thorny issue of social media misconduct and the result is good news for employers.

The initial ET decision in British Waterways Board v Smith was that Mr Smith was unfairly dismissed for making derogatory Facebook comments about his employer and boasting about getting drunk while on emergency standby. The EAT has overturned that decision and found that the dismissal was fair. 

The claimant’s team was responsible for the maintenance of canals and reservoirs. Employees were on standby to deal with emergencies one week in every five, during which time they were not permitted to consume alcohol. In May 2013 a mediation meeting was arranged to deal with a grievance raised by the claimant. Prior to the meeting one of Mr Smith’s managers raised an issue with the HR team about derogatory Facebook comments which Mr Smith had posted about the company two years previously, in breach of BW’s social media policy. The manager had also discussed the comments with HR twelve months previously, but no action was taken at that time. Mr Smith was suspended and ultimately dismissed for gross misconduct. 

The ET found that, although BW had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that the Claimant had made the comments, the decision to dismiss fell outside the band of reasonable responses open to an employer. BW had not taken into consideration Mr Smith’s clean service record or the fact that the comments were made two years previously. The EAT overturned that decision and held that the dismissal was fair. The tribunal had substituted its own views for that of the employer when it held that BW did not give weight to the mitigating factors. This was a matter for an employer to decide and BW’s decision had been within the range of reasonable decisions open to an employer.  

The EAT’s decision is controversial; it suggests that when an employer that has failed to respond to an employee's earlier act of misconduct it will not necessarily lose the opportunity to take action at a later date. The misconduct in this case predated the dismissal by two years and, although the employer took no action at the time, it was not criticised by the EAT for relying on the incident to dismiss the employee. This case also acts as a reminder to employers of the importance of maintaining an effective social media policy that applies not only to conduct at work but also at home.

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