Dismissal for Derogatory Comments on Facebook Fair
An employer was entitled to dismiss an employee for posting derogatory comments about his managers on Facebook and claims that he had been drinking whilst on standby.
It was fair to dismissal an employee for posting derogatory comments about his managers on Facebook and claims that he had been drinking whilst on standby. His conduct was in breach of the employer’s email and internet policy and constituted gross misconduct. The decision to dismiss was fair, even though the misconduct had occurred two years previously and the employer had been aware of it throughout.
In British Waterways Board v Smith, Mr Smith was a manual worker and part of a team responsible for the maintenance and upkeep of canals. He worked on a rota and was required to be on standby for one week in every five. Employees were not allowed to drink alcohol whilst on standby.
The employer’s email and internet policy provided that any actions which might embarrass or discredit it were not allowed, including by posting comments on bulletin boards or chat rooms. Its disciplinary policy provided that serious breaches of its policies constituted gross misconduct.
Mr Smith’s team was not a happy one. He raised grievances against two team leaders. A mediation meeting was arranged to try to resolve his grievances. On being told of the complaints and the mediation, one of the team leaders forwarded to HR copies of Facebook posts made by Mr Smith making derogatory comments about him and other managers. He was trying to show that the issues were not one-sided. An investigation revealed further derogatory comments and a post in which he claimed that he was drunk on standby.
At the disciplinary hearing, Mr Smith admitted to making the comments but denied that he had in fact been drunk on standby. This claim was simply banter. The employer found that the comments made were highly offensive and inflammatory. Even if the comments regarding alcohol were not true, his claim to have been drunk could be read by members of the public and left the employer open to public condemnation. He was dismissed for gross misconduct and claimed unfair dismissal.
The employment tribunal found the dismissal unfair. Although the employer had followed a fair procedure, the decision to dismiss was outside the band of reasonable responses. The employer had failed to take account of Mr Smith’s unblemished service record and that it had been aware of the comments for some time. In addition, in relation to drinking alcohol whilst on standby, there had been no emergency on the night in question and so no danger to life or property.
The employer appealed to the Employment Appeal Tribunal which overruled the tribunal decision. The tribunal had substituted its views for that of the employer on the mitigation issues. It had also wrongly made its own finding of fact in relation to the issue of drinking alcohol whilst on call by inferring that the incident had no impact on the employer. It concluded that the dismissal was fair.
This case demonstrates once against how important it is for employers to have well-drafted IT and disciplinary policies. The employer’s IT policy made it clear that postings which embarrassed or discredited it were not permitted and the disciplinary policy stated that serious breaches of its policies constituted gross misconduct.
This is the second case recently where a dismissal has been found to be fair in circumstances where the employer has gone looking for evidence to support a case of gross misconduct. In both cases the misconduct concerned took place some years previously. In this case the employer had also known about some of the misconduct throughout but was still entitled to rely on it as part of the grounds for dismissal.
Nevertheless employers do need to be careful about whistleblowing and victimisation claims in situations such as this, where raising a grievance leads to disciplinary action. The employee in this case did bring a whistleblowing claim but his claim was rejected by the employment tribunal and that part of the decision was not appealed.
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