Is it unfair to carry out an employee dismissal for making offensive and inappropriate comments on social media, even if that person claims the comments were not true?
No, said the Employment Appeals Tribunal In the case of British Waterways Board v Smith.
In this case, the British Waterways Board dismissed an employee after they found that he had made offensive comments about his managers on Facebook and had indicated that he had been drinking whilst being on standby, which was not permitted.
When questioned, the employee claimed the comments were just ‘banter’ and denied that he had been drinking whilst on standby. He was however dismissed on the grounds of gross misconduct as his comments had undermined the trust and confidence in the employment relationship.
The employment tribunal in this case found that the employee dismissal was unfair as the employer had failed to consider the individual’s mitigation. This included the point that some of the comments he had made were not true and also that he had demonstrated in the three years since the comments had been made that he was not a risk and could be trusted in his work and whilst on standby. The board then appealed to the Employment Appeal Tribunal.
On appeal, the Employment Appeals Tribunal held that the dismissal was fair.
The Employment Appeals Tribunal stressed that there are no special rules for cases involving social media – they are decided in accordance with the ordinary principles of law applied in all misconduct cases.
In this case, the employer had carried out a reasonable investigation and had formed a reasonable belief based on that investigation that the employer was guilty of misconduct which had caused it to lose trust and confidence in its employee.
The Employment Appeals Tribunal made it clear that a tribunal cannot substitute its own view for that of the employer, when deciding whether a dismissal was reasonable or not – it has to ask the question, ‘did the decision to dismiss fall within the band of reasonable responses which was open to a reasonable employer in this case’? The tribunal must take into consideration the employer’s view about what happened and ask itself ‘was the respondent’s reaction in light of those views within the reasonable range of responses?’
The above case should not be seen as a green card to dismiss employees in all cases involving inappropriate comments on social media. As ACAS have recognised, the speed of many social media interactions can lead employers to wrongly abandon how they would normally handle a disciplinary issue.
It’s essential to have a clear policy in place outlining how you expect employees to behave when interacting on social media and to act in accordance with that policy and your company’s disciplinary policy when dealing with any incidents. This will involve a thorough investigation and an assessment of how much damage the comments have actually caused to the business and the employment relationship.
If you would like to find out more about employee dismissal, please speak to our Employment Team on 0161 475 7676.
Read more about the British Waterways Board v Smith case.