Fair dismissal for Facebook comments

11 September 2015

Another case which emphasises the rise and rise of social media issues at work.

British Waterways Board v Smith

Another case emphasising the rise and rise of social media issues at work!.

Mr Smith worked for British Waterways. He was found to have posted various derogatory comments on Facebook about his supervisors. He had also claimed, two years before the issues came to light, that he had been drinking alcohol while on standby duty. He was dismissed for gross misconduct. It was a trust and confidence issue.

Unfair dismissal, said that tribunal. Dismissal was outside the band of reasonable responses. The employer hadn’t factored in mitigation, including length of service. The comments had been made quite a while earlier and, in the years since, Mr Smith had shown that he could be trusted. There hadn’t been any more Facebook comments about drinking while on standby, and no issues raised by supervisors.

The Employment Appeal Tribunal disagreed, holding that the dismissal was fair. The tribunal had substituted its own views for the employer’s. The Facebook entries had been made, there had been a reasonable investigation, the employer had lost confidence in Mr Smith, and there was a fair procedure. The only proper conclusion could be that the dismissal was fair.

So, a lesson for employers and employees alike that social media comments linger and can potentially be a fair basis for dismissal years down the line. The important thing is to get the investigation, procedure and conclusions spot on. And to have a social media policy that makes clear what’s not acceptable. If you don’t have a policy, or your current policy needs updating, please get in touch with the team and we can draft/update it for you.

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