In the recent case of British Waterways Board v Smith (2015), the Employment Appeal Tribunal (EAT) found that an employer acted fairly in dismissing Mr Smith, who was dismissed for making derogatory comments about his employer on Facebook.
Mr Smith had been employed by the British Waterways Board as a manual worker. He worked on a rota system and was regularly required to be on standby. Mr Smith had raised a formal grievance concerning various issues at work, and a mediation meeting had been arranged to try and resolve the issues. However, when Mr Smith arrived for the mediation meeting he was informed that it was not going ahead and he was being suspended whilst an investigation was carried out into comments that he had made on Facebook.
One of Mr Smith’s supervisors had submitted copies of comments that Mr Smith had made on Facebook, some of which referred to supervisors in derogatory terms, to a member of the HR department. The supervisor had not previously raised the issue with Mr Smith (despite being aware of the comments for some time) but he had mentioned the comments to HR on previous occasions, although they had been too busy to investigate them. The supervisor admitted that he had only sent the pages to HR when he did because he found out a mediation meeting had been arranged with Mr Smith. A search was then conducted to find the Facebook accounts and this unearthed other comments, including one that Mr Smith had made about being drunk whilst on standby duty (employees were not permitted to drink alcohol whilst on standby).
Mr Smith admitted making the comments, but said that they were ‘banter’ and he had not in fact been drinking whilst on standby. Mr Smith was called to a disciplinary hearing. The disciplinary procedure gave examples of gross misconduct which included serious breaches of policies and procedures. The email and internet use policy said that any action on the internet which might embarrass or discredit British Waterways was disallowed.
Mr Smith was dismissed for gross misconduct and he lost his internal appeal against the decision to dismiss him. Mr Smith brought a claim in the Employment Tribunal. The Tribunal found that Mr Smith’s dismissal was unfair and the decision to dismiss him was outside the range of reasonable responses of a reasonable employer. The Tribunal held that Mr Smith’s employer had not taken into account mitigating factors, such as Mr Smith’s unblemished record, and the fact that they had known about the comments for some time without taking any action against him. The Tribunal also found that there had been no emergency on the night in question and no call out, so therefore there had been no risk.
The British Waterways Board appealed to the EAT. The EAT overturned the Tribunal’s finding of unfair dismissal and held that the decision to dismiss Mr Smith had been within the range of reasonable responses of a reasonable employer in those circumstances. The EAT found that the Tribunal had made an error by substituting its own view for that of the employer and that the British Waterways Board had taken mitigating factors into account.
In this case, the employer was able to dismiss Mr Smith for gross misconduct even though the comments on Facebook had been made 2 years earlier and the employer had known about them for some time before taking any action. Those of you who attended our seminar in June may remember we discussed the case of Williams v Leeds United Football Club where the employer was able to rely on an employee’s gross misconduct that had occurred 5 years previously, and which only came to light as a result of the employer’s fishing expedition, in order to dismiss him.
Whilst these cases are good news for employers who may be seeking to rely on an employee’s historic gross misconduct in order to dismiss them, employers should exercise caution not to victimise an employee who has raised a grievance. It certainly would not be the norm for historic issues to be used as grounds for dismissal so it is always best to take advice.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).