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Partner and Head of Family Law, Rugby
We’ve all seen that time when you go to check your news feed on Facebook and see someone making a derogatory comment about their manager or fellow colleagues. The question is, can this have any affect on their future employment with the company?
This was tested in the case of British Waterways Board v Smith. Mr Smith was an employee who worked on the maintenance of canals and was summarily dismissed on the grounds of gross misconduct for comments he had made on Facebook 2 years ago. At the time the comment was made, British Waterways Board had a strict social media policy in place which prohibited “any action on the internet which might embarrass or discredit the company (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms…).”
In 2013, Mr Smith raised a formal grievance with his HR manager about the general treatment of staff in the workplace. During the investigation, his manager referred to several offensive comments made by Mr Smith about his managers in 2011 on his Facebook, including;
Going to be a long day, I hate my work
That’s why I hate my work for those reasons, it’s not the work it’s the people who ruin it, nasty horrible human beings.
Along with these comments was another status posted which specifically referred to the fact that Mr Smith was under the influence whilst on standby duty, (“on standby tonight so only going to get half p***** lol”), something which was prohibited by the company. When these comments were put to Mr Smith, he argued that his Facebook was private and sought to argue that he had not specifically mentioned who he worked for. Following a disciplinary hearing, Mr Smith was summarily dismissed for gross misconduct.
Mr Smith brought a claim for unfair dismissal. The Employment Tribunal (ET) held that his employer had failed to take into account Mr Smith’s unblemished records and that the comments were made 3 years previously. The ET therefore held that his dismissal had fallen outside the band of reasonable responses.
British Waterways Board appealed the decision to the Employment Appeal Tribunal (EAT), who reversed the decision of the ET. It was deemed that the company, following a thorough investigation, had reasonable cause to suspend Mr Smith which eventually led to his dismissal.
David says, “these days more and more employment cases are in some way or another connected to social media with the introduction of Facebook, Twitter and Instagram (naming just a few) that has taken the world by storm. Whilst it would be very difficult for employers to ban the use of social media altogether at work, it can be measured by way of a well drafted Social Media Policy which will let your employees know what will/will not be accepted in the workplace.
The case also illustrates that employers who delay or don’t respond immediately to an act of misconduct, do not necessarily lose the opportunity to take action at a later date. Having said that, it is always advisable to deal with any misconduct issues as and when they arise.”
If you would like any advice please contact the Employment team.