In
British Waterways Board v Smith, the Employment Appeal Tribunal (EAT) held that
an employee was fairly dismissed for comments that he made on Facebook.
The Claimant
made derogatory comments on Facebook about his managers and work, and claimed
that he had been drinking whilst on standby two years earlier. The Claimant denied
that he had actually been drinking and explained that the Facebook posts were purely
banter. The Claimant argued that it was usual for individuals to make
exaggerated or untrue claims on Facebook. The Claimant was summarily dismissed
on the grounds of gross misconduct as his comments had undermined the
confidence that his employer or the public could have in him.
The
Employment Tribunal (ET) found that the employer had carried out a reasonable
investigation and had a genuine belief based on reasonable grounds that the
Claimant had made the comments. Nevertheless, the ET found that the dismissal
was unfair as the employer had failed to take into account the Claimant’s
mitigation.
The
EAT overturned this decision and held that the dismissal was fair. The EAT confirmed
that there is no need for special rules in respect of cases involving Facebook and
that such cases will be determined in accordance with ordinary principles of
law. The EAT was of the view that the Claimant’s mitigation must have been
taken into account, as the ET had found that the procedure followed by the
employer was fair. The EAT found that, rather than determining whether the
employer’s decision fell within the range of reasonable responses following a
procedurally fair and sufficient investigation, the ET had essentially substituted
its own view for that of the employer.
This
case is a useful reminder to employers of the importance of maintaining an
effective social media policy and to employees of the importance of exercising
caution when posting online.
