Can you be dismissed for posts on Facebook made during personal time? 

Social Media is a developing area of technology in itself and as more and more people are engaging with social media the instances of issues arising in the Employment Tribunal is increasing. There are no hard and fast rules about how the employment relationship and social media platforms such as Facebook should be dealt with so each time there is a reported case, and particularly a case in the Employment Appeal Tribunal, it makes interesting reading and sparks the debate once again.

The Law

In order for a dismissal to be fair employers must have one of five potentially fair reasons to dismiss:

1. Conduct
2. Capability or qualifications
3. Redundancy
4. Illegality
5. Some other substantial reason

Employers must follow a fair procedure in dismissing an employee and must do so reasonably.

This means that even if there is a fair reason (one of the five above) an employer must satisfy a second test for fairness which will depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and this shall be determined in accordance with equity and the substantial merits of the case (Section 98(4) Employment Rights Act 1996).

The Facts in this case – Smith v British Waterways Board

In this Unfair Dismissal case the employee, Mr David Smith was employed by British Waterways Board (the ‘Employer’) as an operative. He was employed on a 7 day rota and was also on a standby rota for 7 days. The standby period for Mr Smith was one week in five. During the standby period employees were not allowed to drink alcohol (in case they were called upon to work).

During the period March 2012 – May 2013 Mr Smith raised various issues with the Employer about Health and Safety at work and various grievance issues he had. Mr Smith also made complaints about his team leaders Mr McRoberts and Mr McLeod.

The complaints culminated in a meeting being arranged in May 2013 to discuss the issues. However before the complaints could be heard Mr Smith was suspended following disciplinary allegations.

The allegations about Mr Smith had come from posts found on his personal Facebook profile which Mr McRoberts had found and passed to the Employer. The comments included various derogatory things about his supervisors and the Employer.

An investigation was undertaken and comments noted on Mr Smith’s Facebook account which made reference to drinking whilst on standby duty. Some of the Facebook comments are offensive and so I will not repeat them here but you can read them in the full Judgement by clicking here.

Mr Smith denied that he had been drinking and described the comments as ‘banter’ which went on between colleagues regularly. He referred to a running joke against the person who was on standby at the time.

Following the investigation and disciplinary hearing Mr Smith was dismissed for gross misconduct. The Employer was concerned that Mr Smith’s behaviour would undermine confidence in the organisation and stating he was drinking on a public forum during a standby period was sufficient to do this.

Around the same time two colleagues were given varying degrees of warnings for comments made on Facebook, however neither of them had stated that they were drinking whilst on work time.

Mr Smith claimed unfair dismissal and also alleged that he had been dismissed due to protected disclosures he had made to the Employer about health and safety, he claimed that it was not a coincidence that he was suspended at the same time that he was due to have a grievance meeting.

The Glasgow Employment Tribunal considered Mr Smith’s claims and the defence submitted by the Employer.

It was noted that the Employer’s policy regarding ‘Email and Internet Use’ stated;

‘The following activities may expose British Waterways and its employees, agents and contractors to unwarranted risks and are therefore disallowed;-

– Any action on the internet which might embarrass or discredit British Waterways (including defamation of 3rd parties, for examples posting comments on bulletin boards or chat rooms). ‘

Although not explicit reference to personal use of Facebook or Social Media this was sufficient for the Employer to rely on and the Tribunal accepted that posting on personal Facebook during personal time could result in disciplinary action.

The Tribunal decided that the Employer had a potentially fair reason for dismissal, had carried out a reasonable investigation and had a genuine belief in the reason based on reasonable grounds. However, despite this they decided that the dismissal was unfair, as the decision was outside of the ‘band of reasonable responses’, because the Employer had not considered sufficiently the mitigation put forward by Mr Smith, of which there were 8 particular things.

The Employer appealed against this decision on the basis that the Tribunal had substituted their own view for that of the Employer in reaching their decision.

The Decision of the Employment Appeal Tribunal

The Employment Appeal Tribunal examined the decision making of the Tribunal and concluded that the Tribunal had substituted their own view for that of the Employer, and they placed weight on matters which were not by the Employer. They stated that having reached a conclusion that the investigation was reasonable and that the Employer had a genuine belief in the allegations it followed that the decision to dismiss was fair.

The Employment Appeal Tribunal were satisfied that it was fair for the Employer to dismiss Mr Smith in these circumstances and the decision was reversed.

Points to note

This is an interesting decision and shows that where you are making remarks on your own social media accounts that could effect the reputation of your Employer they can take action against you.

Currently each case will depend upon the facts but the key points to note in this case are:

•  Mr Smith’s Facebook account was available to view by the public. There was no security set on it. Interestingly in the course of the case Mr Smith stated that he believed that he had been hacked and the security setting changed.
• The Employer had something, albeit not explicitly relating to social media, in their policies and handbook.
• The comments made by Mr Smith could have had a serious impact on the reputation of the Employer.

It is a fair dismissal for posts on Facebook.

What action do you need to take ?

1. Check your Facebook and other social media security and privacy settings, the safest thing to do is to make your content viewable by your friends only.
2. Only accept people as ‘friends’ who you know and trust.
3. If you think that colleagues may be offended by your ‘out of work’ banter do not accept them as Facebook ‘friends’.
4. Do not make reference on your social media profiles to who your employer is.
5. Avoid making any comments, especially negative ones about work, your employer or colleagues.
6. If you have a grievance at work deal with it through the appropriate procedures in a timely manner, do not delay.
7. If you find yourself in this situation or require assistance with an issue such as this contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email alison@realemeploymentlawadvice.co.uk

Case Name

Smith v British Waterways Board – Employment Appeal Tribunal

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.