We have all seen Facebook posts in our newsfeeds that would make even the most jaded of us cringe. Facebook has been around for nearly a decade and even though we have caught on to privacy settings and scrutinising pictures and post tags, there is still a lot of published material out there. If that material is in any way about an employer (or the employer is identifiable by the context) and can be deemed offensive or breaches duties of confidence, the employee may be sacked on the spot.
In British Waterways Board v Smith, as part of his duties the Claimant and his colleagues were required to be on standby according to a rota, for seven days one week in every five. During their standby period the employees were not permitted to consume alcohol. In 2013, the Claimant was summarily dismissed for misconduct relating to derogatory comments that he posted on Facebook. In short, the comments in question were a cacophony of whinging and disparaging statements, some in a “conversation” thread between him and his fellow employees, and others in his own status updates. In 2011 he posted that he was drunk while on standby.
The Claimant argued that the comments were just “banter” and that he did not intend to offend anyone. He also explained that he had not been drinking whilst on standby and that the comment was a joke.
The Employment Tribunal held that the decision to dismiss the Claimant fell outside the band of reasonable responses which a reasonable employer might have adopted in the circumstances. The employer failed to take into consideration mitigating factors, such as the length of service, the employee’s unblemished record or his explanation regarding the comments.
However, the Employment Appeal Tribunal overturned the Employment Tribunal’s decision and held that the employer followed the correct dismissal procedure and that the dismissal of the Claimant was fair, as his conduct caused the employer to lose confidence in him.
The decision in British Waterways Board followed the legal principles established in the recent case of Game Retail Limited v Laws, in which it was held that an employee had been fairly dismissed following several offensive comments on Twitter about his employer.
The case law on social media related conduct is still developing, but as a rule of thumb, anything that is posted, communicated or published on social media (or anywhere else on the web) creates a permanent record that can go viral when copied, forwarded, shared, linked, tagged, hash tagged, tweeted etc. This makes it quite different from “general banter” or chatting to your colleagues down the pub on a Friday evening.