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Social Media and A Fair Dismissal

The British Waterways Board v Smith case set out that posting Facebook comments about drinking while at work can result in a fair dismissal. The EAT held that as long as the employer has carried out a fair investigation and procedure, and their decision is within a range of possible reasonable responses, then it constitutes a fair dismissal.

Among many derogatory comments regarding the company and supervisors, one of the employee’s posts suggested that he was drinking while on standby at home, a period during which employees are not allowed to consume alcohol.

The case was first heard at an Employment Tribunal, where the decision was that the dismissal was unfair. This was on the basis that the comments were two years old and the employer had known about them for some time before taking action. This was not seen as a reasonable response. However, the Employment Appeal Tribunal later decided that the dismissal was, in fact, fair. The EAT decided that the ET had substituted its views for the views of the employer. The ET’s purpose should have been to decide whether the employer’s decision was one within a range of reasonable decisions which an employer can reasonably take. The EAT’s view was that the British Waterways Board had carried out a fair investigation, had followed a fair procedure and had been entitled to take the misconduct seriously. The employer had lost confidence in the employee in question and that was a satisfactory reason for a fair dismissal.

It is advisable that social media policies are incorporated into the terms and conditions of employment. They should state clearly what is acceptable and more importantly what is unacceptable behaviour. They should also outline how unacceptable behaviour will be dealt with, including any consequential procedures or penalties it could trigger.

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Chris Wareing

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