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Legal Minds

9 September 2015 / by / in

Social Media Dismissal: How long is too long?

The question asked of the EAT in the recent case of British Waterways Board (‘BWB’) v Smith was whether it was unfair to dismiss an employee for comments made on Facebook which (1) he claimed were untrue (2) were made two years before his dismissal and (3) his employer had been aware of during this period?

The facts

In this case, Mr Smith had raised a number of grievances. This lead to a mediation being arranged, during the course of which one of Mr Smith’s managers supplied copies of pages taken from his Facebook account two years earlier. This prompted further investigation, as the Facebook posts contained a number of derogatory comments made by Mr Smith about his managers and work, as well as a reference to Mr Smith drinking alcohol while on standby in 2012 (even though Mr Smith’s manager had known about this at the time and had discussed this with BWB’s HR team).

Mr Smith denied that he had in fact been drinking and claimed that the comments were banter, but was summarily dismissed on the grounds of gross misconduct as his comments had undermined the confidence BWB or the public could have in him.

Despite finding that BWB had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that Mr Smith had made the comments, the employment tribunal found that the dismissal was unfair as BWB had failed to consider Mr Smith’s mitigation, including the point that some claims made on Facebook are exaggerated or not true.

The EAT disagreed.  It found that BWB’s decision had been within the range of reasonable responses and that the Tribunal had incorrectly substituted its own view for that of BWB.  The EAT saw no point in remitting the case to a new Tribunal saying that there could be only one answer – that the dismissal was not unfair.

Points to takeaway

Employees should by now be aware of the dangers of venting their frustrations with employers on Facebook, as recent cases have demonstrated that derogatory comments can lead to fair dismissals. Whilst dismissals based on comments made on social media outside of the workplace remain fact sensitive, the recent tranche of case law suggests that dismissal may still be fair even where the comments were made years ago or where a deliberate search was undertaken by the employer to find further comments.

In this case, the EAT has gone a step further by finding that a dismissal may remain fair in these circumstances even if the employer was aware of the comments at an earlier date but failed to act.

Notwithstanding this, and despite the wave of developing case law in this area, the EAT has still not set out any general guidance for employers tasked with investigating misconduct involving social media.

What is a clear message that is emerging from the recent decisions regarding social media dismissals is that a well-drafted and effectively-communicated social media policy is crucial and could be central in defending any claim that a dismissal was unfair.

For individuals this case serves as a further reminder of the importance of exercising caution when posting on social media, as any derogatory posts could backfire.

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