The Ghost of Social Media.

By Andrew Knorpel on 13 August 2015

It seems to be a month when many people are reflecting on what they may have said or done in the past and which, with hindsight, they might regret.

Following a recent judgment of the EAT, Mr Smith’s dismissal for gross misconduct by the British Waterways Board arising from remarks he had made on Facebook was found to be fair.  Not only had Mr Smith made derogatory remarks about his work and colleagues, but he had also boasted that he had been drinking alcohol when on standby two years earlier.  As you might expect, consumption of alcohol when on standby was banned.

The employer’s social media policy specifically prohibited “any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)”.

Initially, an employment tribunal had found his dismissal to be unfair on the basis that Mr Smith had tried to argue that some of his allegations were either untrue or had been exaggerated, his previous unblemished service record and the fact that the employer had been aware of the Facebook comments for at least a year.  This was despite the fact that they had found that the employer had both conducted a reasonable investigation and had a genuine belief (based on reasonable grounds) that Mr Smith had acted in the manner he had described in his social media posts.

On appeal, it was held that the employer had in fact considered the Claimant’s arguments in mitigation, but that the employment tribunal had substituted its own view for that of the employer.  Interestingly, the EAT took no issue with the fact that the Facebook comments were two years old, had been known about by the employer for at least a year and had only been raised as a concern when Mr Smith had raised grievances against colleagues.

Although this case shows that it is possible to take action against an employee some considerable time after the alleged misconduct has come to light, I would still advise any employer to deal with it as soon as possible to avoid the argument that the conduct must have been acceptable if no disciplinary action was taken.

And by the way, this case is yet another reminder to employers (if you needed one) of the benefit of having a properly drafted social media policy which has been communicated to all staff.

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