14 August 2015 #Employment
Employees should by now be aware of the dangers of venting their frustrations with employers on Facebook. Recent cases have demonstrated that derogatory comments can lead to fair dismissals even where the comments were made years ago or where a deliberate search was undertaken by the employer to find further comments. However, the EAT has gone a step further in British Waterways Board v Smith  UKEAT/0004/15 by finding that a dismissal may remain fair in these circumstances even if the employer was aware of the comments at an earlier date but failed to act.
Mr Smith worked for the British Waterways Board (BW) in a team responsible for the maintenance and upkeep of canals and reservoirs. BW operated a rota whereby Mr Smith was required to be on ‘standby’ for one week in every five, during which time he was not allowed to consume alcohol.
Sometime before Christmas 2012, the HR team at BW had been alerted to derogatory comments Mr Smith had made about his supervisors on Facebook but it had been too busy to investigate these. Copies of derogatory comments Mr Smith had made were later provided in May 2013, in preparation for a workplace mediation, including the comment “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 u for this s***" . More comments were subsequently uncovered including some from 2011 which suggested that Mr Smith had been drinking whilst on standby - “on standby tonight so only going to get half p***** lol” and “im on vodka and apple juice first time ive tried it no to shabby”.
BW’s social media policy stated that it did not allow “any action on the internet which might embarrass or discredit BW (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)….”.
Mr Smith admitted making the comments but said these were just ‘banter’ and that he had not actually been drinking whilst on standby. BW decided that the comments, true or not, had the potential to undermine confidence that employees, and the public, could have in BW’s ability to react to emergency situations. It felt the comments undermined the trust and confidence BW had in Mr Smith, left BW open to public condemnation and were a clear breach of policy. Mr Smith was summarily dismissed and claimed unfair dismissal.
The Tribunal sided with Mr Smith on the basis that BW had failed to consider mitigating factors such as Mr Smith’s unblemished record and the fact that the comments were ‘historic’ and already known to the HR team. Further, it said there had been no emergency whilst Mr Smith was on standby and that drinking whilst on standby was not really a problem for BW.
The EAT disagreed. It found that BW’s decision had been within the band of reasonable decisions open to it and that the Tribunal had incorrectly substituted its own view for that of BW. The Tribunal had also incorrectly made its own findings of fact by inferring that the drinking did not pose a risk. The EAT saw no point in remitting the case to a new Tribunal saying that there could be only one answer – that the dismissal was not unfair.
Dismissals based on comments made on social media outside of the workplace remain a volatile area and cases are very fact specific. However, it no doubt helps employers to ensure that they have a social media policy in place which clearly sets out the standards that they expect in and out of the workplace. Check out Employmentbuddy's social media policy as an example.