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25.08.15 Social Media – be careful what you post!

25 August 2015

In the case of British Waterways (‘BW’) v Smith, the Employment Appeal Tribunal (‘EAT’) held a dismissal which was imposed for derogatory comments on Facebook about an employer was fair.

Mr Smith was employed by BW for 8 years as a canal worker. His job involved being on a standby rota one week in every five. Whilst on standby BW prohibited employees drinking alcohol. BW also have a social media policy which prohibits “any action on the internet which might embarrass or discredit BW.”

Mr Smith raised a grievance against his employer and whilst going through the correct procedures, BW were made aware that Mr Smith had been posting derogatory comments on Facebook about his supervisors and also how two years earlier he had been drinking alcohol whilst on standby.

Mr Smith was suspended with immediate effect pending an investigation into the alleged Facebook comment in relation to drinking alcohol whilst on standby. Mr Smith explained he had not intended to offend anyone and his comments were ‘banter’ and he had not in fact been drinking. He also stated that his Facebook page must have been hacked as he would have not deliberately set his Facebook profile security settings to ‘public’ on the basis that he has pictures of his children on his account.

Mr Smith contended that he had been bullied and harassed for 8 years so he felt it was convenient that he had been suspended on the day that he had a meeting planned to investigate his grievances.

Mr Smith was dismissed. He challenged his former employer through the Employment Tribunal which found that; “The decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted and that the dismissal was therefore unfair.” The Tribunal was concerned that the employer had not considered any of the mitigating circumstances that had been offered, the fact that the comments were made two years earlier and the fact that there had not been an emergency on the day in question.

BW appealed the Tribunal ruling and the Employment Appeal Tribunal (‘EAT’) overturned the decision. The EAT said that such cases must be determined according to the ordinary principles of law, agreeing with the decision in the case of Game Retail v Laws. Having found the procedure was fair (i.e. the investigation resulting in the loss of confidence in the employee), the EAT concluded Mr Smith’s mitigation was taken into account and therefore the dismissal was not unfair. 

View the full case here.

Together with the Game case, this confirms that allegations of social media misuse should be dealt with in the same way as any other allegations of misconduct.

The public nature of social media comments means that the potential for reputational damage is significant. Employers must ensure they have a clear, well publicised social media policy in place so that employees can understand what is not acceptable.

Have you got a social media policy? To discuss the drafting of a policy or the review of a current policy, call Aspire Business Partnership LLP on 0121 445 6178 or email enquire@aspirepartnership.co.uk