Facebook comments lead to fair dismissal

British Waterways Board v Smith [EAT] | 2015

Mr Smith had worked for British Waterways Board for 8 years. He was part of a team that maintained canals and reservoirs. Part of his role included being on standby, during which British Waterways required that he should not drink alcohol.

British Waterways had a social media policy which prohibited “any action on the internet which might embarrass or discredit British Waterways…”  Examples of gross misconduct included serious breaches of its policies.

Mr Smith raised a number of grievances, including against his supervisors and managers. In response, one manager disclosed to HR posts Mr Smith had made on Facebook, purportedly to show the issues Mr Smith complained about were not one-sided. The comments posted included Mr Smith calling his supervisor a “w*****”; his employers as “f******”; work as “s***”. He also posted “on standby tonight so only going to get half pissed lol”.

The manager had been aware of the posts for some two years and they had been discussed with HR previously but no action taken.

Mr Smith claimed his dismissal was unfair. The employment tribunal agreed, despite concluding that there had been a reasonable investigation and reasonable procedure followed.

The Employment Appeal Tribunal disagreed. It stated that social media cases did not need “special rules”. The test remains was an employer’s decision within a range of reasonable responses and British Waterways decision was:

1. The claimant admitted the comments but said it was “banter”.
2. The comments about the supervisors were highly offensive and inflammatory.
3. The comments about alcohol whilst on standby could result in a lack of confidence in the claimant.
4. The claimant’s comments were unacceptable and a breach of British Waterways’ policies.

This case re-emphasises the need for employers to put in place clear parameters about what is and is not acceptable in the use of social media. The fact that the comments were made from a personal computer or that British Waterways were not directly identified other than by the use of the acronym “BW” did not matter. The passage of time and prior knowledge also, surprisingly, did not render the dismissal unfair.