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19th August 2015

Employees beware of what you post on Facebook

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Social media is increasingly becoming a part of every day life and it is not uncommon to see posts that are “letting off steam” in respect of day to day annoyances.

Social media is increasingly becoming a part of every day life and it is not uncommon to see posts that are “letting off steam” in respect of day to day annoyances. The recent case of British Waterways Board v Smith [2015] UKEAT/0004/15 is, however, a stark reminder to employees that they should be very careful about what they post on social media sites, especially when such posts relate to their work. Mr Smith was employed by the British Waterways Board and was part of a team responsible for the general upkeep of reservoirs and canals. During his employment Mr Smith raised a number of grievances in respect of his team, which included allegations of bullying and harassment. In response to this, Mr Smith's managers raised the fact that Mr Smith had made derogatory comments about his work and his team on his Facebook page. Mr Smith's managers had known about these comments for a number of years, had discussed them with Human Resources previously but had not raised them with Mr Smith or investigated them further. They had simply raised these issues to demonstrate that the behaviour that was the subject to the grievance was not “one-sided”. The Company’s social media policy prohibited "any action on the internet which might embarrass or discredit” the Company. A further search of Mr Smith’s Facebook page revealed that Mr Smith had posted various derogatory comments about work on his page and had been doing so for a number of years. The comments referred to supervisors and the Company in derogatory terms and included posts such as "hard to sleep when the joys of another week at work are looming NOT" and "going to be a long day I hate my work". Further, Mr Smith’s team worked on a rota basis which required team members to be on standby for one week in every five to assist with any emergency calls. Whilst on standby employees are not permitted to consume alcohol but some of Mr Smith’s Facebook posts suggested that he had been consuming alcohol whilst he was on standby. Mr Smith was suspended from work pending an investigation into the comments made on his Facebook account and was subsequently summarily dismissed for gross misconduct. The Company found that Mr Smith had made derogatory comments about the Company in breach of its social media policy and that he had claimed to be drinking alcohol whilst on standby. Mr Smith brought a claim in the tribunal for unfair dismissal. In the first instance, the tribunal found that Mr Smith had been unfairly dismissed. It found that the Company’s decision to dismiss fell outside the band of reasonable responses as it had not taken into account Mr Smith's unblemished service record. Further, the Company had been aware of the Facebook posts for some time and, therefore, the tribunal found that it was unreasonable for the Company to rely on these comments to summarily dismiss Mr Smith two years later. The Company appealed against this decision and the EAT allowed the appeal, and substituted a finding that the dismissal was fair. The EAT found that the tribunal had substituted its own views for that of the employer when it held that Company did not take into account mitigating factors. What weight to give such mitigating factors was a matter for an employer to decide and the EAT found that the decision to dismiss had been within the range of reasonable decisions open to an employer. This case is a very real reminder to employees that what they post on Facebook can be looked at by their employer and that derogatory posts can be the grounds for disciplinary action, up to and including dismissal, if they relate to their employment. This case also shows that an employer who initially fails to act on an employee's misconduct will not necessarily lose the opportunity to take action at a later date. In this case, Mr Smith’s misconduct had occurred two years previously and the Company had known about it for some time, yet the EAT did not criticise the Company for relying on this misconduct to dismiss. For more information please visit our Employment Services page or contact Gemma Hill on 01604 233233 or click here to email Gemma.