Is it fair to dismiss an employee for a Facebook status posted years ago?

The recent trend in the courts seems to support aggressive pursuit of misconduct on social media by employers and the latest example involving the British Waterways Board is no exception. A canal worker who was sacked for gross misconduct due to posts he made on Facebook has lost his claim of unfair dismissal despite the fact the posts were made more than two years before the dismissal.

Mr Smith was employed by British Waterways Board as a manual worker and worked on the maintenance and general upkeep of canals and reservoirs. His team worked on a rota pattern and was on standby for one week in every five. Due to the nature of the work, employees were prohibited from consuming alcohol whilst on standby. There were many problems within Mr Smith’s team and he had previously brought a number of grievances against colleagues. While investigating one such grievance in 2013, his employer discovered that Mr Smith had made various offensive and disparaging comments about his supervisors on his Facebook account in 2011. They also discovered two posts in which he bragged about drinking alcohol while on standby. Mr Smith’s grievance was immediately halted and the employer commenced disciplinary action against him. During the disciplinary process Mr Smith admitted to posting the comments but thought that his Facebook was private. He had not referred to his employer by name in the posts. Mr Smith also said that it was a running joke amongst employees to make jokes about drinking whilst on standby as they knew they weren’t allowed to do so. He claimed that he had not been drinking when he wrote the Facebook post. He had an unblemished record and described the posts as “banter”.

Mr Smith was dismissed for gross misconduct. The British Waterways Board said that they believed the public nature of the posts meant that they and the public could no longer trust the employee when he was on standby. Mr Smith brought a claim for unfair dismissal on the basis that his employer had failed to consider the mitigating factors he put forward and that the decision to dismiss was unreasonable. The Employment Tribunal sided with Mr Smith and found the dismissal was unfair.

On appeal this decision was overturned. The Employment Appeal Tribunal (EAT) found that Mr Smith’s dismissal was fair as the decision to dismiss for gross misconduct fell within the “range of reasonable responses” open to his employer.

The EAT’s decision supports the earlier decision involving Game Retail Limited which confirmed that there are no special rules for the conduct of unfair dismissal cases involving social media. Whether a decision to dismiss was reasonable will depend on the standard “range of reasonable responses” test.

In the case involving Leeds United FC an employer undertook a “fishing exercise” with a view to dismissing an employee for gross misconduct so they could escape a lengthy contractual notice period. The resulting dismissal was held to be fair despite the passage of significant time since the offensive emails were sent by the employee.