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Facebook, derogatory comments, vodka and a fair dismissal

28-08-2015

So, we’ve all heard about employees being dismissed for the insulting comments made about their employer on their Facebook over the weekend, but what about comments that were made two years ago? A recent case before the Employment Appeal Tribunal re-considered a case involving this question and other factors…

The case involved the British Waterways Board and one of their 160 manual workers who was summarily dismissed for gross misconduct. The employee worked a 7 day rota and was required to be on stand-by one week in every five. During the stand-by week they are not permitted to drink alcohol. This was well known by all employees.

The employee made various complaints about how he was treated by his managers, including allegations of bullying and harassment. As part of an investigation into the issues, the employer found a number of offensive comments on the employees’ Facebook account. This included referring to his supervisor fu$%ers, pricks and nasty horrible human beings.

They also found the following statements, made about two years previously: 

‘on standby tonight so only going to get half pissed lol” and

“I’m on vodka and apple juice first time ive tried it no to shabby” 

These last two references caused serious concern as they were made in a public forum on Facebook and BW considered that if the public thought their employees were drinking when on standby it would undermine their trust in the Company and it undermined their trust in the employee.

They therefore initiated disciplinary proceedings, relying on breach of procedures and their e-mail policy which made it clear that any action on the internet that might embarrass or discredit BW was not permitted.

The disciplinary hearing determined that the trust that BW placed in the employee had been breached and that therefore it was appropriate to dismiss for gross misconduct. The decision was upheld on appeal. The employee initially won his claim at the employment tribunal, but the Employment Appeal Tribunal reversed this decision finding the dismissal was fair and highlighting that the tribunal cannot substitute its own views in deciding whether the decision to dismiss was fair. The tribunal must determine whether there was a fair reason to dismiss and whether the decision to dismiss was within the range of reasonable responses. Given that the employer had investigated, considered and issued warnings to two other employees who had made less offensive comments, it was reasonable for them to decide to dismiss in all the circumstances.

This case is a useful reminder for employers of the importance of having clear, effective social media policies and a reminder to everyone to be careful what you post on your Facebook page!

 


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