An employee found this out the hard way in the recent case of British Waterways Board v Smith UKEAT/0004/15.
Facts
Mr Smith worked for the British Waterways Board (BWB) within its
maintenance team from April 2005 to June 2013. As a result of his
employment, Mr Smith would be required to be on standby one week in
five for seven days, during which time he could not consume
alcohol. In May 2013 one of his managers produced copies from his
social media account which indicated that he had been drinking
whilst on standby in 2012 (a fact which BWB management already had
prior knowledge of) and that he had made numerous derogatory
comments about his supervisor.
In June 2013, BWB summarily dismissed Mr Smith for gross
misconduct. BWB found, amongst other things, that being under the
influence of alcohol and making offensive remarks on social media
was unacceptable and a serious breach of BWB's policy,
amounting to gross misconduct.
Employment Tribunal and EAT proceedings
Mr Smith brought a claim for unfair dismissal to the Employment
Tribunal (ET). The ET held that his dismissal was unfair on the
basis that BWB had failed to consider mitigating factors and the
historic nature of the comments – which were made two years
ago.
BWB subsequently appealed this decision to the Employment Appeal
Tribunal (EAT). It overturned the ET's decision, finding that
the decision to dismiss was in fact, fair. The EAT found that the
ET had substituted its own views for that of the employer when it
held that BWB did not give weight to the mitigating factors. This
was a matter for an employer to decide and the EAT held that
BWB's decision had been within the range of reasonable
decisions open to an employer.
Conclusion
This case serves as a reminder to employers about the importance
of maintaining an effective and robust social media policy. Taking
the time to develop clear policies will place the employer in a
stronger position should they be required to take disciplinary
action against employees with regards to inappropriate online
commentary.
This case does require to be treated with some caution if an
employer is facing similar circumstances. Whilst delay in taking
disciplinary action will not automatically render a dismissal
unfair, as this case demonstrates, there have been other cases
where a substantial delay for no good reason has rendered any
otherwise fair dismissal unfair.
Finally, this case serves as a timely reminder to employees to
think twice about the comments they are posting on Social
Media.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
