Bulletins | August 27, 2015

Social media dismissal – case update

Social media has been a hot topic for businesses for a number of years now. As it increases in prevalence, many employers are keen to ensure that they manage their employees’ usage of social media, both inside and outside work, insofar as it relates to the company or does something which may bring the company into disrepute. There has been a recent, and rather interesting, decision involving a dismissal for gross misconduct due to social media usage.

The facts of the case

The Claimant, Mr Smith, was employed by British Waterways Board for 8 years.  The shift patterns meant that he was, on occasion, on standby.  When on standby, employees were prohibited from consuming alcohol, so that they would be able to come into work should they be called upon.

In 2011 and whilst on standby, Mr Smith posted a comment on Facebook which suggested that he had in fact been drinking alcohol.  He said “on standby tonight so only going to get half p**sed lol“.  This comment was first brought to the attention of the employer’s HR team in 2012. No investigation or disciplinary action was taken against Mr Smith at that time.

During the course of 2012 and 2013, Mr Smith raised a number of grievances. The grievances concerned a variety of issues with his team leaders, the usage of certain equipment, tasks he was being asked to perform, and also allegations of bullying and harassment against other employees. This culminated in mediation being arranged in May 2013 in an attempt to resolve matters. However, when Mr Smith arrived at the mediation session, he was instead suspended pending an investigation into comments which had been found on his Facebook page.

One of the managers had found these comments. The reason for doing so was to show that the issues with bullying and harassment were not as one sided as Mr Smith had suggested. The comments showed Mr Smith discussing his work and supervisors in derogatory terms and included:

  • hard to sleep when the joys of another week at work are looming NOT”
  • “going to be a long day I hate my work”
  • ” why are gaffers such pr***s, is there some kind of book teaching them to be total w***ers

This led the company to carry out further investigation, at which time the comment about being drunk whilst on standby came to light once more.  When challenged about this, Mr Smith said that this was just banter and that he had not really been drinking alcohol whilst on standby.

Mr Smith was summarily dismissed for gross misconduct due to the derogatory comments and also drinking alcohol whilst on standby, which brought British Waterways Board into dispute; presumably on the basis that the wider public could have perceived that the employer condoned employees drinking alcohol during standby.  He brought a claim for unfair dismissal against the company.

The Employment Tribunal (“ET”) decision

The ET found that Mr Smith had been unfairly dismissed. The ET considered that the decision to dismiss fell outside the ‘range of reasonable responses’ which a reasonable employer could make. The ET said that no regard had been given to his employment record since making that comment in 2011 (which was unblemished) and the fact that they had known about the comments for some time. In addition, the ET decided that the fact that Mr Smith was not called upon when he was on standby and allegedly drunk should have been taken into account by the employer. Furthermore, the ET made the point that some matters are exaggerated on social media and this, again, should have been taken into account. British Waterways Board appealed.

Employment Appeal Tribunal (“EAT”)

The EAT disagreed with the ET and found that the dismissal was fair. The EAT said that the ET had substituted its own view for that of the employer, which it should not do, and that the employer had taken the mitigating circumstances into account when reaching its decision, as it had followed a fair procedure.

Our view

This case brings up some interesting points:

  • The comment about drinking alcohol on standby, which was one of the reasons for Mr Smith’s dismissal, was made a number of years before and indeed, had been brought to the employer’s attention previously (and they failed to take any action in relation to it). Whilst it is not good practice to rely on conduct from many years ago (of which an employer had knowledge) as it is generally unreasonable, this shows that there is scope to argue that in certain circumstances, it can be used against an employee much further down the line.
  • The employer effectively undertook a “fishing expedition” against this employee because he had raised a grievance. Arguably, this could have been criticised by the Tribunal and could even have amounted to victimisation; looking at it in very basic terms, if he hadn’t brought a grievance, he would not have been dismissed.
  • It reiterates the fact that an employer has no obligation to verify the truthfulness (or otherwise) or a particular statement. Here, Mr Smith said that he had not really been drinking alcohol on standby.  he employer acted reasonably in drawing conclusions from that comment without having to prove it was true, and in any event, it was the comment itself which could harm the reputation of the company.
  • It is a useful reminder to employers to implement (and keep updated) a social media policy, dealing with acceptable and unacceptable usage of social media, and the possible consequences of non-adherence.