The Employment Appeal Tribunal has deemed that comments made on social media by an employee of British Waterways Board (BWB) about his employer could allow for that employee to be fairly dismissed.
The worker, who was part of a team responsible for the maintenance and upkeep of canals and reservoirs had taken legal action after he was dismissed for making comments on Facebook about his employer and his working conditions.
Unfair Dismissal
As part of his contract with BWB, the employee was expected to work five days with a further day on standby, where he was not expected to consume alcohol. After an investigation by BWB, it was discovered that the employee had made offensive remarks about his supervisors online and had admitted to drinking on days when on standby.
The comments went against the social media policy and contract of BWB, which stated "any action on the internet which might embarrass or discredit the BWB (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms) was forbidden". As a result of the breach, the employee was dismissed. An Employment Tribunal found that the dismissal was unfair with the employee being awarded compensation.
However, the company took an appeal to the Employment Appeals Tribunal (EAT) who overturned the decision and ruled that the dismissal was fair. In the judgement, the EAT stated that the Employment Tribunal had given too much consideration to the mitigating factors raised by the employee (such as his unblemished service record, his consistently good performance reviews and the fact that HR did not investigate the comments when they became aware of them). In conclusion, they ruled that BWB had been entitled to reach the decision it did, placing importance on the clear guidance which the organisation provided on the use of social media in its contractual documentation. As the BWB had carried out a reasonable investigation into the alleged misconduct, arrived at the reasonable belief that the misconduct was established and that the employee had acted in breach of the BWB’s social media guidance, it was reasonable to conclude that gross misconduct had taken place and dismissal was an appropriate sanction.
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