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An employer fairly dismissed an employee who posted comments on Facebook expressing offensive views of his colleagues and suggesting that he had consumed alcohol while on standby for work. The fact that some of the comments were made in 2011 and the employer was made aware of these comments at that time but did not summarily dismiss the worker until 2013 was irrelevant. Dismissal for gross misconduct was within the range of reasonable responses available to the employer, the
Employment Appeal Tribunal (EAT) ruled.
“This shows that an employer that has failed to respond to an employee’s earlier act of misconduct will not necessarily lose the opportunity to take action at a later date,” according to Andrew Egan, a solicitor specializing in employment law with Charles Lucas & Marshall in the firm’s Newbury, England, office.
Fairness of Misconduct Dismissals
To demonstrate that a dismissal is fair, an employer must show that it was for one of the reasons set out in the Employment Rights Act 1996 (ERA). Section 98(2) of the ERA provides that misconduct is a potentially fair reason for dismissal.
A misconduct dismissal will be fair only if, at the time of the dismissal, the employer:
Further, the employer must demonstrate that the decision to dismiss fell within the range of reasonable responses available to the employer.
The employee began working at the British Waterways Board on April 1, 2005, employed in the maintenance of canals and reservoirs. He worked a seven-day shift and was on standby for work for seven days one week in every five.
From March 2012 to May 2013, the worker raised several grievances about the behavior of his supervisors and about health and safety issues. While organizing a mediation of these grievances, a member of the employer’s HR department was told that the employee had made several offensive comments on Facebook about his colleagues. When the HR representative investigated, she discovered that the employee had also suggested in other comments that he had consumed alcohol while on standby for work. The employee’s Facebook profile was set to “public,” enabling HR to view and print the relevant comments.
The employee was suspended pending an investigation. The investigation found the comments to be in contravention of the employer’s social media policy, which prohibited “any action on the Internet which might embarrass or discredit” the company, and the employer’s policy on the consumption of alcohol while on standby. It was also determined that it was possible to identify the company from the comments and that, because the comments were public, they were likely to damage the business’s reputation. The employee was dismissed for gross misconduct and brought a claim for unfair dismissal.
The Employment Tribunal (ET) held that the employee had been unfairly dismissed. The tribunal noted that the employee had an unblemished service record and consistently good performance reviews and had not imposed risk on the employer or others. Further, the offending Facebook comments had been brought to the attention of the HR department when originally made but had never been investigated.
The EAT overturned the decision of the ET, holding that the dismissal was fair. The EAT decided that the ET had gone outside the scope of its duty and had substituted its own views for those of the employer. The EAT determined that the ET had not adequately taken into account the severity with which the employer viewed the comments and the resultant impact on its confidence in the employee.
“The fact that the [employee] had not restricted his privacy settings allowed the [company] to access his comments, and they were viewed as more damaging given their public nature,” said Amanda Steadman, a professional support lawyer at Addleshaw Goddard in London.
“A well-drafted social media policy will help an employer address inappropriate social media activity,” she noted.
The British Waterways Board v. Smith, UKEATS/0004/15/SM (Aug. 3, 2015).
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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