The dismissal of an employee for derogatory comments made on Facebook about his employer two years prior to his dismissal has been found to be fair by the Employment Appeals Tribunal in the UK.
The employee worked for the British Waterways Board (BWB) and was part of a team responsible for the maintenance and upkeep of canals and reservoirs. The team worked on a seven-day rota and was required to be on stand-by to deal with emergencies for seven days one week in every five. During the stand-by period, the team members were not permitted to consume alcohol.
During the course of his employment, the employee raised a number of grievances. In the course of preparing for mediation of a grievance in May 2013, BWB obtained copies of comments taken from the employee’s Facebook account, which then prompted further investigation. The comments referred to his supervisors in derogatory terms and also stated that he had been drinking alcohol while on stand-by. The social media policy of BWB stated that “any action on the internet which might embarrass or discredit the BW (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)” was forbidden.
Following an investigation by BWB, the employee was dismissed for gross misconduct. The employee brought a claim for unfair dismissal before the Employment Tribunal (ET), who found that his dismissal had been unfair. BWB appealed to the Employment Appeals Tribunal (EAT) who overturned the decision and ruled that the dismissal was fair. The EAT found that BWB had followed fair procedure and that it had a genuine belief that the employee had taken alcohol while on stand-by. The EAT stated that the ET had given too much consideration to the mitigating factors raised by the employee (such as his unblemished service record, his consistently good performance reviews and the fact that HR did not investigate the comments when they became aware of them) and despite the fact that the breaches had taken place some years earlier, BWB had been entitled to reach the decision it did.
This decision is a reminder to employers of the importance of having an effective social media policy in place. It also suggests that a failure to take immediate steps in relation to misconduct will not necessarily prevent the employer from taking action in respect of that misconduct at a later date. However, advice should always be sought in such circumstances.
Contributed by Catherine O’Flynn.
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