In the latest in a seemingly never ending run of cases involving misconduct through social media, the Employment Appeal Tribunal (EAT) has recently ruled in British Waterways Broad v Smith, that it was fair to dismiss an employee for derogatory comments made about his employer on Facebook, even when the misconduct took place two years before the dismissal and the employer had been aware of the misconduct throughout that period.
The Claimant (C) had worked for British Waterways Board (BW) since 2005. He was responsible for the maintenance and upkeep of canals and reservoirs. C worked on a rota pattern and was on standby for one week in every five, during which employees were not permitted to consume alcohol.
BW’s disciplinary policy provided examples of gross misconduct, one example being a serious breach of one of its policies. BW’s social media policy said that “any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, posting comments on bulletin boards or chat rooms)”.
While C was working for BW, he had raised a number of grievances, when a mediation meeting was arranged to deal with these grievances in May 2013, his manager bought to light comments C had made on his Facebook page about BW’s HR team. C’s manager had also known since 2012 that C had posted a comment back in 2011 that he had been drinking alcohol while on standby. The HR team were informed about these comments in 2012 but no further action was taken.
After the manager raised the comments about the HR team, they made subsequent searches and found numerous derogatory comments relating to supervisors and to C drinking alcohol while on standby.
Some of the comments included:
- “on standby tonight so only going to get half p***** lol”
- “chipper training today and supposed to go home after it w***** supervisor told the trainer to keep us as long as he could they f***** don’t even pay u for this s***”
When C arrived for the mediation meeting he was suspended pending further investigation and after a disciplinary hearing in June 2013 he was summarily dismissed for gross misconduct. Following an unsuccessful internal appeal he bought proceedings against BW for unfair dismissal.
The Tribunal found that C had been unfairly dismissed. The Tribunal held that BW had not taken into account the mitigating factors of C’s unblemished service record and that BW had been aware of the comments for some time. In relation to drinking alcohol whilst on standby, the Tribunal found that there had been no emergency on the night in question and therefore there had been no impact.
When the case reached the EAT it held that the dismissal was fair. The EAT found in essence that the Tribunal had wrongly substituted its own views for the employer’s on the issue of mitigation and the risk of drinking alcohol whilst on standby. The EAT found that BW’s decision to summarily dismiss had been within the range of reasonable decisions open to them and the dismissal was fair.
This case serves as a reminder to employers of the importance of communicating to employees the standards expected of them through effective staff policies. It also shows that if an employer fails to investigate and respond to a previous act of misconduct this does not necessarily mean the employer will be unable to take action at a later date. This is the more surprising aspect of the decision and of course ideally an employer should act promptly in response to reports of misconduct. Nevertheless, this case forms something of a pattern of recent cases where the Tribunals have focussed primarily on the employee’s misconduct and whether it justifies dismissal, rather than exactly when the misconduct took place and whether the employer had gone searching for that misconduct.
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