In the recent case of British Waterways Board v Smith, Mr Smith was a waterways operative responsible for the maintenance and general upkeep of canals and reservoirs. One of his duties involved being on standby, responding to emergency situations outside of normal working hours. Naturally enough, employees were not permitted to drink alcohol while on standby duty.
Mr Smith made a number of highly offensive and derogatory statements about his managers on Facebook and also boasted about drinking alcohol at a time 2 years previously when he was on standby. After investigation he was then summarily dismissed on the grounds of gross misconduct (despite claiming that he had made up the alcohol story) as he had undermined the confidence his employers held in him. Mr Smith issued a tribunal claim.
The first employment tribunal decided that even though the employer had genuinely believed that Mr Smith was under the influence of alcohol while on standby duty, the subsequent breach of trust had been “repaired” by Mr Smith carrying out his duties “apparently without incident” in the 2 years since the alcohol incident had allegedly happened.
This may seem a little odd – in reaching this decision the tribunal had effectively substituted its own conclusion for that of the employer – saying that the genuine belief of the employer and genuine reason for dismissal was incorrect. The employer appealed and the employment appeal tribunal agreed with them, overturning the decision and finding that they had been justified in dismissing on the facts of the investigation.
The impact of this case is important for employers. If an employee posts inappropriate material to social media you can act reasonably by:
- Going through a correct investigation process
- Reaching a reasonable decision to dismiss based on the material posted, even if the employee later claims that the material was untrue.
Doing the right groundwork beforehand will also make the investigation much easier and the conclusions easier to justify:
- Having a well drafted social media policy, applying both to conduct at work and conduct at home
- Explaining that social media privacy settings do not mitigate bad behaviour, as once posted, there is no control over where comments may end up
- Communicating the policy to all staff
If you become aware of an employee making harmful comments on social media (and this is more common than you might think), please contact Backhouse Solicitors and we will talk you through the best way to deal with the situation.
The Backhouse Solicitors Team