Be aware when posting on social media…

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…it could cost you your job!

Is it fair to dismiss an employee for two year old comments made on Facebook, which the employee claimed were untrue?

In the case of The British Waterways Board trading as Scottish Canals v Mr David Smith, the Employment Appeal Tribunal held that it was fair.

The claimant (Mr David Smith), and two of his colleagues, had posted some comments on Facebook referring to their supervisors in derogatory terms. This resulted in the employer looking more closely at the claimant’s Facebook profile. In the course of their checks they found another comment, which dated back to 2011, whereby the claimant posted an entry “being drunk while on standby”. Workers are not permitted to consume alcohol whilst on standby and the claimant was suspended whilst an investigation was conducted into the Facebook entries. He was subsequently dismissed on the grounds of gross misconduct.

The employment tribunal concluded that, although a reasonable investigation had been carried out and the employer had a genuine belief held on reasonable grounds – the claimant had made the comments on Facebook, the dismissal was held to be unfair. The rationale for this was that the employer had failed to consider mitigating factors including his clean disciplinary record, good performance and colleague banter to name but a few.

The employer appealed to the Employment Appeal Tribunal (EAT) who overturned the decision and held that the decision to dismiss was fair. The EAT found that the employment tribunal had in fact substituted their own view when deciding whether the decision to dismiss fell within the band of reasonable responses. The tribunal had concluded the procedure was fair (both investigation and dismissal) and, in order for the procedure to be fair, the employer must have considered the claimant’s mitigation arguments.

For employment legal help and advice please contact our Emplyment team on 01733 882800.

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