LEGAL CORNER: Employee’s dismissal for ‘banter’ on Facebook upheld

25th Sep 2015

Yet another social media related dismissal was considered by the Employment Appeal Tribunal in The British Waterways Board v Smith (UKEAT S/0004/15).

Mr Smith was employed as a manual operative, working a seven day rota. He was also on standby for seven days, one week in every five. Whilst on standby, employees were not permitted to consume alcohol. Mr Smith and his colleagues had a number of issues with their managers, and Mr Smith himself had raised grievances about this. A mediation meeting had been suggested, and although Mr Smith was not keen, his employer did organise one. However, when he arrived, he was told he was to be suspended for an investigation to be conducted into comments he had made on Facebook.

Mr Smith had made a number of comments about his work, complaining about how much he hated his job, and denigrating his managers. Although not identifying his employer by name, one of the comments to his posts from another employee referred to ‘bw’ [British Waterways]. Two years prior to being suspended, he had made a comment suggesting that he had been drinking whilst on standby, identifying the particular drink and commenting on it. Mr Smith did not deny that he had made the comments, but said that they had been made in jest as it was common for himself and his colleagues to banter about drinking alcohol whilst on standby. He denied having actually consumed alcohol whilst on standby. He was not aware that his profile was set to public rather than private, and believed that his profile must have been hacked. He stressed that it was very convenient to bring this issue up on the same day as he was due to have a meeting about the concerns he had raised about his managers.

During the investigation it became apparent that Mr Smith’s managers had been aware of the Facebook comments for over six months. They had been passed to HR but there was no one free to investigate. The managers had brought the comments to HR’s attention prior to the mediation to highlight that Mr Smith’s allegations were not all ‘one-sided’.

Mr Smith attended a disciplinary hearing and as a result of which he was dismissed. His employer found that the comments, whether true or not, had the potential to undermine the confidence that employees and the public had in Mr Smith’s ability to react to an emergency situation, albeit that there had not been one on that day. His actions therefore undermined the trust his employer required to have in him. The dismissing manager decided that being under the influence of alcohol and making offensive remarks in Facebook were unacceptable and a clear breach of the respondent’s policy and amounted to gross misconduct.

This decision was upheld on appeal, as a result of which Mr Smith brought an unfair dismissal claim to the Employment Tribunal. The Tribunal found that the decision to dismiss was unfair, as it fell outside the range of reasonable responses open to a reasonable employer. In particular, they felt that the dismissing manager had failed to consider Mr Smith’s mitigation – in addition to the points raised above, they considered the fact that by its very nature, Facebook – as a social media used for chat, frequently involved people making claims which were either exaggerated or simply not in fact true. Moreover, Mr Smith had worked for two years after the comments were posted (the tribunal erroneously said it had been 3) without any suggestion that he had consumed alcohol whilst on standby.

The employer appealed, and their appeal was upheld. The Employment Appeal Tribunal reversed the tribunal’s decision and found the dismissal was fair. They accepted the employer’s argument that it appeared the tribunal, rather than analyse whether the employers’ decision was fair or not, substituted its own view of what it would have done in light of the facts as they had found them. This was apparent from a number of erroneous and inaccurate comments in the tribunal’s judgment, for example the error on the period of time between the comments and the suspension as mentioned above. It had also made findings of fact about the events that took place, which it had not been required to do. The employer successfully argued that “drinking while on standby; telling anyone who read Facebook that he had done so; and using offensive language to describe colleagues on Facebook, open to all to read, was plainly gross misconduct and should have been found to be so by the tribunal.”

This is yet another cautionary tale about the perils of Facebook – in this case comments which were claimed to be fabricated, without mentioning the employer’s name himself, resulted in Mr Smith losing his job. Employees need to be very cautious when they choose to make any comments that could be perceived to be negative by their employer.

Safia Tharoo, Barrister, 42 Bedford Row, London

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