The Dangers of Social Media

21 August, 2015
by: Cripps Pemberton Greenish

In British Waterways Board v Smith, the Employment Appeal Tribunal (EAT) held that an employee was fairly dismissed for comments that he made on Facebook.

The Claimant made derogatory comments on Facebook about his managers and work, and claimed that he had been drinking whilst on standby two years earlier. The Claimant denied that he had actually been drinking and explained that the Facebook posts were purely banter. The Claimant argued that it was usual for individuals to make exaggerated or untrue claims on Facebook. The Claimant was summarily dismissed on the grounds of gross misconduct as his comments had undermined the confidence that his employer or the public could have in him.

The Employment Tribunal (ET) found that the employer had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that the Claimant had made the comments. Nevertheless, the ET found that the dismissal was unfair as the employer had failed to take into account the Claimant’s mitigation.

The EAT overturned this decision and held that the dismissal was fair. The EAT confirmed that there is no need for special rules in respect of cases involving Facebook and that such cases will be determined in accordance with ordinary principles of law. The EAT was of the view that the Claimant’s mitigation must have been taken into account, as the ET had found that the procedure followed by the employer was fair. The EAT found that, rather than determining whether the employer’s decision fell within the range of reasonable responses following a procedurally fair and sufficient investigation, the ET had essentially substituted its own view for that of the employer.

This case is a useful reminder to employers of the importance of maintaining an effective social media policy and to employees of the importance of exercising caution when posting online.