In the recent case of British Waterways Board t/a Scottish Canals v Smith, the Scottish Employment Appeal Tribunal (“EAT”) considered whether it was fair to dismiss an employee for using Facebook to post offensive comments about his colleagues and boast about drinking whilst on standby.
Summary of facts
The Respondent is responsible for inland waterways in Scotland and employed the Claimant as an operative from April 2005. In May 2013 the Claimant was suspended from work pending an investigation into his use of Facebook to post offensive comments about his colleagues and boast about drinking whilst on standby. Following an investigation, a disciplinary hearing was convened at which the Claimant admitted he had made the postings, but in reality, he had never been drunk whilst on standby. He also said his comments were made in jest and that someone had hacked his Facebook account and changed his privacy settings from private to public. The disciplinary manager concluded that whether or not the Claimant’s comments were true, they potentially undermined the confidence that colleagues and the public had in the Claimant, and otherwise undermined the confidence that the Respondent had in him. The disciplinary manager also concluded that being under the influence of alcohol and making offensive remarks on Facebook represented a clear breach of internal policy and amounted to gross misconduct. The Claimant was summarily dismissed.
The Claimant’s internal appeal was unsuccessful and he lodged a claim of unfair dismissal in the Employment Tribunal. Despite finding that the Respondent had followed a fair procedure, the Tribunal found that “the Respondent’s decision” to dismiss fell outside the band of reasonable responses and therefore the dismissal was unfair.
However, upon the Respondent’s appeal to the EAT, the EAT found that the Employment Tribunal had made “its own” findings of fact and substituted “its own view” for that of the Respondent employer, which should not be done. In the circumstances the EAT overturned the Tribunal’s decision and found that the dismissal was fair. It was additionally noted in the EAT’s judgment that there are no “special rules” when deciding cases involving the use of social media and that they fall to be determined in accordance with the ordinary principles of fairness.
Unfortunately, no “special rules” were laid down in this case, which might have been used as guidance for employers when considering the use of social media by employees. However, the decision is another warning to employees to exercise caution when using social media, be that on their employer’s equipment or personal computers and devices. It also acts as a reminder to employers to have clear policies on the use of social media and to communicate these to employees.
This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice in relation to any of the above, please contact Philip Minnis of these offices on 020 7955 1508 or by e-mail at firstname.lastname@example.org