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The posts that can cost the most: Facebook and Gross Misconduct

By this point, some eight years after it became a household name, we are all more or less au fait with the ubiquitous ‘Facebook’; it is indispensable for many, inescapable for some. 

It seems however that the legal ramifications for employees making derogatory statements about their employers has still to yet fully sink in. While many users of the app may think that they are posting to a limited audience, it does of course have the capability to make such posts go much further and become the equivalent of taking out a full page advert in a national newspaper.

Still though it seems the cases keep coming in respect of posts and their implications for those that make them and the wider employment law. The most recent example comes in the form of the Employment Appeals Tribunal (“EAT”) case of British Waterways Board v Smith. Here Mr Smith made derogatory comments about his employer and its management, in addition to a claim that he had been drunk while on standby some two years earlier; such intoxication was expressly against the employer’s policy.

Later when called to account for these comments by his employer, Mr Smith denied he had been drinking at the relevant time when on call and that this had been exaggerated ‘banter’ for the benefit of his Facebook readers. His employer did not accept this and he was summarily dismissed for gross misconduct on the basis that his comments caused a loss of confidence in him by both his employer and the public at large.

Curiously at the initial Employment Tribunal (“ET”) hearing, Mr Smith’s dismissal was found to be unfair. This was despite the fact that his employer had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that Mr Smith made the comments in question. The ET considered that the employer had failed to take into account Mr Smith’s points in mitigation, including that some comments on Facebook can be exaggerated or outright untruths. There was additional regard by the original ET to Mr Smith’s Facebook account having apparently been ‘hacked’, with his settings being altered to ‘public’ without his knowledge, as well as the historic nature of the comment regarding being drunk while on standby going back some two years.

The employer appealed to the EAT, which then overturned the original tribunal’s decision, finding that Mr Smith’s dismissal was in fact fair. Accepting that social media cases should not be subject to “special rules” but rather the ordinary principles of law, the EAT agreed with the previously reported case of Game Retail Ltd v Laws. 

The EAT considered that having found no procedural problems with the dismissal, the ET must have allowed for Mr Smith’s mitigating factors to have been taken into account. The EAT therefore found that the original tribunal had substituted its own decision for that of Mr Smith’s employer.

Conclusion

This is another decision that solidifies the tribunal system’s unwillingness to implement any kind of special provisions in relation to derogatory comments made via social media. For the avoidance of doubt they are being treated along the same lines as other misconduct dismissal cases.

While this should ensure employers rest relatively safe in the knowledge that the tribunal will side with them in such cases, clearly better training and more visible policies in the workplace might help employees understand the implications of their posts and so save wasted time and effort for the employer in investigating and, as with Mr Smith’s case, defending at a full tribunal as well as appeal. 

As always, if I can provide you with any further assistance in relation to conducting a grievance hearing or any other employment law matter please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk.


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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