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Fair dismissal for Facebook comments

British Waterways Board v Smith

This is another case emphasising the rise of social media issues at work.

Mr Smith worked for British Waterways. He was found to have posted various derogatory comments on Facebook about his supervisors. He had also claimed, two years before the issues came to light, that he had been drinking alcohol while on standby duty. He was dismissed for gross misconduct as there was a trust and confidence issue.

The Employment Tribunal (ET) held that this was unfair dismissal as dismissal was outside the band of reasonable responses. The employer had not factored in mitigation, including length of service. The comments had been made quite a while earlier and, in the years since, Mr Smith had shown that he could be trusted. There had not been any more Facebook comments about drinking while on standby, and no issues raised by supervisors.

The Employment Appeal Tribunal (EAT) disagreed and held that the dismissal was fair. The EAT found that the Employment Tribunal had substituted its own views for the employer’s. Further, the Facebook entries had been made, there had been a reasonable investigation, the employer had lost confidence in Mr Smith, and there was a fair procedure. The only proper conclusion could be that the dismissal was fair.

A lesson for employers and employees alike that social media comments linger and can potentially be a fair basis for dismissal years down the line. The important thing is to get the investigation, procedure and conclusions spot on and to have a social media policy that makes clear what is not acceptable.