With social media a part of everyday life, employees should by now be aware of the dangers of venting their frustrations with employers on Facebook, Twitter or other social media sites. 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, in the recent case of British Waterways Board v Smith the Employment Appeal Tribunal (EAT) has gone one step further by finding that a dismissal may remain fair even if the employer was aware of the comments at an earlier date but failed to act.
In this case, the employee (Mr Smith) worked for the British Waterways Board as a manual worker from 1 April 2005 to 4 June 2013. He was part of the team responsible for the maintenance and general upkeep of canals and reservoirs, working on a rota pattern which included him being on standby for one week in every five. The employer prohibited the consumption of alcohol by employees on standby and, its social media policy made it clear that the employees were not to post any comments on bulletin boards or chat rooms ‘on the internet which might embarrass or discredit British Waterways including defamation of third parties….”
During a mediation meeting in May 2013, it came to light that Mr Smith had made derogatory comments about his supervisors on his Facebook page earlier in 2011. Worse still, he had posted comments which indicated that he was consuming alcohol when on standby. Mr Smith’s manager had known about this since 2012 and had discussed it with HR at the time but no further action had been taken against the employee.
As a result, of the further disclosure by the employee’s manager in 2013, the employee was suspended pending an investigation into the comments recovered from his Facebook account and was subsequently summarily dismissed for gross misconduct following a disciplinary hearing. This was despite the comments having been made, and the employer having been aware of them, 2 years previously. The Employment Tribunal found that Mr Smith’s dismissal was unfair. It considered that the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. In particular, it was concerned that the employer had not considered any of the mitigating circumstances that had been offered such as, Mr Smith’s clean service record, the amount of time which had passed since the employer had become aware of the comments and the fact that there had not been an emergency on the day in question.
On appeal, however, the EAT held that on the facts the dismissal was fair.
This case provides hope that an employer who has failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date, although it is always prudent for employers to investigate potential acts of gross misconduct as soon as they are made aware of them. That said, this area is very much fact dependent and each case will vary from one to the other. Nonetheless, 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 from their staff.
If you would like such a policy drafted, or any advice relating to Social Media issues in the workplace, please contact Kay Kularia in our employment team by calling 020 8891 6141 or e-mail firstname.lastname@example.org