The use of social media by individuals and businesses is now commonplace. As a result, we have seen a number of cases involving the use of social media come before the courts. We also regularly receive queries from employers about implementing social media policies and disciplining/performance managing staff as a result of their use of social media.

In the recent case of British Waterways Board v Smith, the Employment Appeal Tribunal (“EAT”) decided that it was fair to dismiss an employee who had posted derogatory comments about his employer and his job on Facebook.

The Facts

Mr Smith worked for the British Waterways Board (“BWB”) as part of team responsible for the maintenance and general upkeep of canals and reservoirs. Mr Smith made numerous complaints about his working conditions and raised a formal grievance with his HR manager about the treatment of staff. However, prior to a mediation taking place to try and resolve his grievances, BWB suspended Mr Smith in relation to derogatory comments he had posted on Facebook two years earlier.

Mr Smith’s posts included stating that he was not happy with his job, “going to be a long day I hate my work” and “why are gaffers such p****s, is there some kind of book teaching them to be total w*****s“.

In addition, Mr Smith also mentioned that he was drinking alcohol while on standby duty, “on standby tonight so only going to get half p****d lol“.

Following a disciplinary process, BWB decided to dismiss Mr Smith for gross misconduct due to the derogatory statements made about his employer and for also claiming to drink alcohol whilst on standby; bringing his capability into question and damaging the reputation of BWB.

The Decisions

Mr Smith’s internal appeal failed and he issued a claim against BWB at the Employment Tribunal (“ET”). The ET decided that Mr Smith’s dismissal was unfair. Whilst BWB had followed a fair disciplinary procedure, the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted.

BWB had known about the Facebook comments for some time and had also failed to consider Mr Smith’s clean disciplinary record. The ET also accepted that some claims made on Facebook are exaggerated or not true.

With regards to his comments regarding drinking alcohol whilst on standby, the ET decided that there was no risk to life or property on the night Mr Smith had been allegedly drinking and that BWB did not have issues with employees who drank whilst on standby. BWB appealed the ET’s decision to the EAT.

The EAT allowed BWB’s appeal. The ET had substituted its own view for that of the BWB when deciding whether the allegations were sufficiently serious to warrant dismissal for gross misconduct. In addition, the ET had made its own findings of fact in relation to Mr Smith’s drinking whilst on call, by inferring that the incident was not of risk to others and that BWB had no issues with employees on standby drinking alcohol.

The EAT found that such cases should be determined according to the ordinary principles of law i.e. whether the employer had acted reasonably and whether its decision fell within the band of reasonable responses available to it. BWB had followed a fair disciplinary procedure and had reasonable cause to lose confidence in Mr Smith. As such, the decision to dismiss was fair.

What does this mean in practice?

• This decision serves as a useful reminder for employers to have well-drafted social media policies setting out the repercussions for any breaches.
• In this case, Mr Smith posted the comments two years before the disciplinary procedures were commenced by BWB. Whilst this case illustrates that employers who delay or don’t respond immediately to an act of misconduct, do not necessarily lose the right to take action at a later date, this is a fact specific decision. Employers should however, follow the ACAS Code of Practice and ensure that any disciplinary action is taken “promptly” upon learning of any potential disciplinary offence.
• For unfair dismissal cases, the test the employer has to satisfy is the “band of reasonable responses” test. It is therefore not for the ET to decide whether the decision to dismiss was fair but whether the employer’s decision, in the circumstances, was reasonable.

If you would like advice regarding implementing a Social Media Policy in the workplace, please contact the Employment Team.