In British Waterways Board (t/a Scottish Canals) v David Smith [2015], the Court of Appeal considered whether an employment judge had made an error in finding the employee had been unfairly dismissed for social media misconduct.
Facts
Mr Smith worked as an operative for Scottish Canals. He made derogatory comments on his Facebook page about his managers and a comment about drinking whilst he was on standby for flood alert. The employer’s disciplinary policy had a range of sanctions and listed examples of gross misconduct which included serious breaches of policies and procedures. The internet use policy stated internet activities which might embarrass or discredit the employer were not allowed. The employer found that Mr Smith’s Facebook posts were in breach of the internet policy as they both embarrassed and discredited the company. In dismissing Mr Smith the employer found that his actions amounted to gross misconduct as he had seriously breached their internet use policy. Mr Smith raised a claim at the Employment Tribunal (ET) for unfair dismissal.
Law
Section 98(2)(b) of the Employment Rights Act 1996 provides that misconduct is a potentially fair reason for dismissal. The ET will consider whether the employer acted reasonably or unreasonably in all the circumstances. For a dismissal to be fair:
- an employer should conduct a fair investigation which is reasonable in the circumstances; and
- the employer should as a result and on reasonable grounds, believe the employee was guilty of the misconduct.
Decision
The ET found that Mr Smith had been unfairly dismissed as the decision was not within the band of reasonable responses which an employer might have adopted in the circumstances. The employer had failed to give sufficient weight to the mitigation put forward by Mr Smith in coming to its decision and that the decision was therefore one no reasonable employer would have reached. The Employment Appeal Tribunal (EAT) reversed the ET’s finding of unfair dismissal. It held that the ET had substituted its own views for that of the employer as to the weight that should have been given to Mr Smith’s mitigation. The facts were that a reasonable investigation and a fair procedure had taken place, the employer genuinely believed that the employee was guilty of a serious breach of their procedures and had lost confidence in the employee. As a result, the dismissal was within the range of reasonable responses and the ET should have found the dismissal was fair.
Comment
This case shows the importance of having a social media policy in place when it comes to taking disciplinary action and ultimately dismissing an employee. Employers should clearly inform employees of their policy and that any breach may result in disciplinary action. The policy should list potential sanctions for breach and give examples of unacceptable conduct. A good social media policy should cover postings made inside and outside the workplace and should be updated and recirculated regularly. The case also highlights the importance of a full investigation and fair procedure for a dismissal to be fair, and stresses that Facebook, or other social media related dismissals, are not special cases and should be treated in the same way as other forms of misconduct. In our article on the case involving Game Retail v Laws earlier this year, Kate Wyatt, Partner in our Employment team offered pointers for employers when faced with social media misconduct.
