Employee fairly dismissed for comments about employer on Facebook
In the next case, an employee was fairly dismissed for making derogatory comments about his employer on Facebook, even though the misconduct had taken place two years before dismissal and the employer had been aware of the misconduct throughout that period and had not taken action.
The Claimant worked for British Waterways Board (BW). BW’s social media policy prohibited "any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms),” BW's disciplinary procedure cited serious breaches of its policies as an example of gross misconduct.
One of the Claimant’s work colleagues supplied incriminating comments the Claimant had made on his Facebook page to BW's HR team. The comments referred to the Claimant’s job and to his supervisors in derogatory terms and also to the Claimant drinking alcohol while on standby duties. The comments had been made some 2 years previously. The Claimant’s manager had known about the comment about drinking at the time and had discussed it with HR who did nothing about it.
The Claimant’s Facebook comments included:
“(i) 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"
"(ii) why are gaffers such p*****, is there some kind of book teaching them to be total w******"
"(iii) on standby tonight so only going to get half p***** lol"
"(iv) im on vodka and apple juice first time ive tried it no to shabby"
The Claimant was suspended pending an investigation into the comments recovered from his Facebook account and was summarily dismissed at his subsequent disciplinary hearing for gross misconduct. BW found that the Claimant had made derogatory comments about BW as an employer and that he had claimed to be drinking alcohol whilst on standby, bringing his capabilities into question and leaving BW open to public condemnation.
The Claimant's claim for unfair dismissal succeeded before the tribunal but was reversed by the EAT.
Although BW had followed a fair procedure, the tribunal ruled that BW’s decision to dismiss was unreasonable. This was because BW had not taken into account the mitigating factors of the Claimant's unblemished service record and the fact that BW had been aware of the comments for some time.
In relation to the drinking alcohol whilst on standby incident, the tribunal found that there had been no emergency on the night in question and therefore no impact on the Claimant's colleagues and no risk to life or property.
The EAT allowed the employer's appeal, and substituted a finding that the Claimant’s dismissal was fair.
The EAT ruled that the tribunal had impermissibly substituted its own views for that of the employer when it decided that BW did not give weight to the mitigating factors. This was a matter for an employer to decide and BW's decision to find that there was insufficient mitigation had been within the range of reasonable decisions open to an employer.
Also, the tribunal had impermissibly made its own findings of fact in relation to the Claimant drinking alcohol whilst on call, by inferring that the incident had no impact.
The interesting feature of this case is that it shows that an employer which has failed to respond to an employee's earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. The misconduct in this case predated the dismissal by two years and the employer had known about it for a considerable part of that time, yet the EAT did not criticise the employer for relying on it to dismiss the employee.
Finally, this case is a useful reminder to employers of the importance of adopting an effective social media policy and, of course, to employees of the need to excercise caution when posting on social media sites.
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