A cautionary tale for all social media users.
In the case of British Waterways Board v Smith, Mr Smith was employed as a manual worker who worked for a team responsible for the maintenance and general upkeep of canals and reservoirs, from 1 April 2005 to 4 June 2013.
During his employment, Mr Smith raised a number of grievances, but when he arrived at a mediation meeting, he was suspended from work pending an investigation into the comments recovered from his Facebook account. The Claimant had made derogatory comments about his managers and work, and a claim that two years earlier he had been drinking whilst on standby, which is not permitted. Some of the comments consisted of “that’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings” and “on standby tonight so only going to get half p***** lol.” Whilst the Claimant denied that he had in fact been drinking, and claimed that the comments were banter, he was summarily dismissed on the grounds of gross misconduct as his comments had undermined the confidence his employer or the public could have in him.
The Employment Tribunal found that Mr Smith had been unfairly dismissed. They held that British Waterways Board failed to take into account Mr Smiths mitigation, which included his unblemished service record, the fact that the company had known of the comments for some time and the point that some claims made on Facebook are exaggerated or not true. In respect of the drinking alcohol comment, the tribunal held that there had been no emergency on that particular night, and therefore no impact on Mr Smith’s colleagues and no risk to life or property. The tribunal therefore found that the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted.
The Employment Appeal Tribunal however, overturned that decision and held that the dismissal was fair. They held that the employment tribunal had substituted its own views for that of the employer. Having found that the procedure was fair, the employment tribunal must have concluded that the Claimant’s mitigation was taken into account.
This case demonstrates the importance for employers to ensure they maintain an effective social media policy, and also serves as a reminder to employees to exercise caution when posting online.