Paul Mander explains how a Facebook brag left a British Waterways employee in the drink
The rise in misconduct by way of social media was again addressed by the Employment Appeal Tribunal (EAT) in the recent case of The British Waterways Board (t/a Scottish Canals) v Smith (Unfair Dismissal : Reasonableness of dismissal)  UKEAT 0004_15_0308. The EAT decided that there is no need for special rules in respect of misuse of social media in an employment context and that the ordinary rules and principles of employment law should apply. This decision follows on from the case of Game Retail Limited v Laws earlier this year, in which an employee was deemed to have been fairly dismissed following several inappropriate comments on a social media account, linked to his employer.
In British Waterways, part of Mr Smith's employee duties involved being on 'standby'. This required him to remain available to deal with any emergencies outside of normal working hours and to expressly refrain from alcohol during this time.
Mr Smith did not enjoy his job and had brought a number of grievances against colleagues. While investigating one such grievance in 2013, the investigating officer discovered that Mr Smith had made several highly offensive and disparaging comments about his managers and work in general on his Facebook account in 2011, as well as at least two posts that bragged about his consumption of alcohol while on standby. Following this revelation, disciplinary proceedings were commenced and Mr Smith was eventually summarily dismissed. The dismissal followed an investigation, hearing and an unsuccessful appeal against dismissal. The stated reason for dismissal was that British Waterways' trust and confidence in Mr Smith as an employee had been irreparably undermined by the posts concerning his being under the influence of alcohol while on standby, even though those posts were made two years previously.
The Employment Tribunal (ET) at first instance found in favour of Mr Smith on the grounds that British Waterways had not considered a number of potentially mitigating factors, such as Mr Smith's claim that the Facebook comments regarding his drinking alcohol while on standby were not true and the fact that he had an otherwise unblemished employment record.
The EAT overturned this decision, finding that British Waterways had followed a fair procedure and that it had a genuine belief that Mr Smith had been under the influence of alcohol while on standby. The EAT specified that it is not the ET's place to come up with its own list of potentially mitigating factors and that, despite the fact that the relevant misconduct had taken place some years earlier, British Waterways had been entitled to reach its decision. Dismissal was within the range of reasonable responses that might have been adopted by a reasonable employer.
This is another example of the tribunal's 'harsh but fair' approach to gross misconduct cases. It will be quite reassuring to employers but it needs to be treated with a lot of caution. The employer instituted disciplinary proceedings while it was dealing with Mr Smith's grievance and the misconduct was not only two years prior, but it had also been brought to the employer's attention at that time. In similar circumstances, I could certainly see a different result coming out of the tribunal and not being overturned by the EAT.
Paul Mander is a partner and the head of the employment team at Penningtons Manches: www.penningtons.co.uk