In the latest in a long line of cases involving social media the EAT has recently decided that derogatory comments made by the employee can result in a fair dismissal, even where the comments were made in excess of two years ago.
FACTS: Mr Smith was employed as a manual worker as part of a team at BWB responsible for the upkeep and maintenance of canals and reservoirs. He worked on a rota system and was regularly required to be on standby. Mr Smith had raised a formal grievance with concern his working conditions which was to be addressed at a mediation hearing. The mediation hearing was subsequently suspended to deal with allegations concerning Mr Smith’s posting of derogatory comments with reference to BWB on Facebook. The comments which had been posted two years earlier expressed Mr Smith discontent with his job and stated “going to be a long day I hate my work” and “why are gaffers such p****s, is there some kind of book teaching them to be total w*****s”. Mr Smith also stated in another entry that he would be drinking whilst on duty, “on standby tonight so only going to get half p****d lol”.
BWB’s social media policy stated that it did not permit “ any action on the internet which might embarrass or discredit BWB”.
Mr Smith was summarily dismissed on the grounds of gross misconduct, a decision that was later upheld on appeal.
Despite BWB following a fair disciplinary process, Mr Smith was successful in bringing a claim for unfair dismissal and the Tribunal concluded that the decision to dismiss Mr Smith from his employment fell outside the range of reasonable responses. In particular the Tribunal felt that that BWB had not given proper regard for Mr Smith’s unblemished record and they also noted that BWB had been aware of the postings on Facebook for some time prior to taking any formal action. Further the Tribunal found that there had been no emergency on the night that Mr Smith had allegedly been drinking, this therefore had posed no risk to BWB.
BWB appealed to the EAT and the EAT allowed the appeal and determined that the dismissal was fair. It found that BWB’s decision to dismiss was in fact within the range of reasonable responses and decided that the Employment Tribunal had incorrectly substituted its own view for that of BWB.
POINTS TO NOTE – This case should serve as a stark reminder to Employers to ensure that they have a clear and well drafted social media policy , that protects their interests as well as sets out the consequences for those employees who fail to adhere to the policy. It also demonstrates that derogatory comments made on social media can result in fair dismissals, even where the comments date back several years.