EAT rules that dismissal for making derogatory comments against employer on Facebook was fair
The Employment Appeal Tribunal (EAT) has held that it was fair to dismiss an employee who made derogatory comments about his employer on Facebook 2 years ago.
The EAT said that it did not matter that the misconduct had taken place 2 years before dismissal or that the employer had been aware of the misconduct throughout that period.
Mr Smith worked for the British Waterways Board (BW) as a manual worker from 1st April 2005 to 4th June 2013, when he was summarily dismissed for gross misconduct. Mr Smith worked for a team responsible for the maintenance and general upkeep of canals and reservoirs. The team worked on a rota pattern and was on standby for one week in every five, during which employees were not permitted to consume alcohol. The team he worked in was not unified and there was history of managers not treating staff with respect.
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).
During his employment, Mr Smith raised a number of grievances about the treatment of staff and was set to attend a mediation hearing to try and resolve the matter. However BM cancelled the mediation and suspended Mr Smith after being send copies of his Facebook posts. In 2011, Mr Smith had posted a comment relating to drinking alcohol whilst on standby. Mr Smith’s manager had known about this since 2012 and had discussed it with the BW HR team. The BW HR team had not raised them with Mr Smith or investigated them further.
The comment, and others found during a subsequent search by the HR team, referred to supervisors in derogatory terms and to Mr Smith drinking alcohol whilst on standby. The tribunal found that the comments made by Mr Smith included:
"hard to sleep when the joys of another week at work are looming NOT"
"going to be a long day I hate my work"
"why are gaffers such p*****, is there some kind of book teaching them "
"on standby tonight so only going to get half p***** lol"
Mr Smith admitted to making the statements but added he thought that his Facebook was private and that he had not expressly mentioned who he worked for. He also said that it was a running joke amongst employees to make jokes about drinking whilst on standby as they knew they weren’t allowed and that he was not drinking when he wrote the Facebook post.
At a disciplinary hearing BW summarily dismissed Mr Smith for gross misconduct as they believed the public nature of the posts meant that they and the public could no longer trust him when he was on standby. Mr Smith's internal appeal was unsuccessful and he brought a claim in the tribunal for unfair dismissal.
The tribunal found that Mr Smith had been unfairly dismissed. Although BW had followed a fair procedure, the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. This was because BW had not taken into account the mitigating factors of Mr Smith's unblemished service record and 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 Mr Smith's colleagues and no risk to life or property) and that BW had not had any subsequent difficulty with employees drinking alcohol whilst on standby.
The EAT allowed the appeal, and substituted a finding that the dismissal was fair. It held that this was a matter for an employer to decide and BW's decision had been within the range of reasonable decisions open to an employer. Given that BW had carried out a procedurally fair investigation and that it had reasonable cause to lose confidence in Mr Smith, the decision to dismiss could not be anything but fair.
This case shows that an employer that 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.
The British Waterways Board v Smith  UKEAT/0004/15, 3rd August 2015
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