Summary: Was it fair to dismiss an employee who had made derogatory comments about his employer on Facebook two years before his dismissal, where his employer had been aware of the misconduct during this period?
Yes, says the EAT in British Waterways Board v Smith, available here.
Facts: Mr Smith was employed by British Waterways Board as a manual worker. 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.
Mr Smith did not enjoy his job and had brought a number of grievances against colleagues. While investigating one such grievance in 2013, the investigating officer discovered that Mr Smith had made several highly offensive and disparaging comments about his managers and work in general on his Facebook account in 2011, as well as at least two posts that bragged about his consumption of alcohol while on standby.
Following the above revelation, disciplinary proceedings were commenced and Mr Smith was eventually summarily dismissed. The dismissal followed an investigation, hearing and an unsuccessful appeal against dismissal. The stated reason for dismissal was that British Waterways’ trust and confidence in Mr Smith as an employee had been irreparably undermined by the posts concerning his being under the influence of alcohol while on standby, even though those posts were made two years previously.
Mr Smith brought a claim for unfair dismissal. The Tribunal upheld Mr Smith’s claim on the grounds that British Waterways had not considered a number of potentially mitigating factors, such as Mr Smith’s claim that the Facebook comments regarding his drinking alcohol while on standby were not true and the fact that he had an otherwise good employment record.
British Waterways appealed and the EAT upheld its appeal. It found that British Waterways had followed a fair procedure and that it had a genuine belief that Mr Smith had been under the influence of alcohol while on standby. The EAT found that British Waterways had been entitled to reach its decision to dismiss despite the fact that the relevant misconduct had taken place some years earlier. The EAT specified that it is not the Tribunal’s place to come up with its own list of potentially mitigating factors and that, dismissal was within the range of reasonable responses that might have been adopted by a reasonable employer.
Implications: A good reminder to employers of the importance of maintaining an effective social media policy in order to strengthen the position to take disciplinary action when faced with misuse. It is also a helpful case for employers (but to be treated with some caution) in that it shows that in certain circumstances an employer that has failed to respond to an employee’s earlier act of misconduct can successfully 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. However, another EAT panel may have found differently and it is always advisable to take action in respect of an employee’s misconduct without undue delay.