Social Media Dismissal: EAT declines to lay down guidance

Thanks to James English of Hempsons solicitors for preparing this case summary

Was it unfair to dismiss an employee for comments made on Facebook which he claimed were untrue?

No, held the EAT in British Waterways Board v Smith in a cautionary tale for all social media users.

The Claimant had made derogatory comments on Facebook about his managers and work, and a claim that two years earlier he had been drinking whilst on standby. During a standby period, workers were not permitted to consume alcohol. Whilst the Claimant denied that he had in fact been drinking, and claimed that the comments were banter, he was summarily dismissed on the grounds of gross misconduct as his comments had undermined the confidence his employer or the public could have in him.

Despite finding that the employer had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that the Claimant had made the comments, the employment tribunal found that the dismissal was unfair as the employer had failed to consider the Claimant's mitigation, including the point that some claims made on Facebook are exaggerated or not true.

The EAT overturned that decision and held that the dismissal was fair. The EAT said that such cases fall to be determined according to the ordinary principles of law, agreeing with Game Retail Ltd v Laws. Having found that the procedure was fair, the employment tribunal must have concluded that the Claimant's mitigation was taken into account (which the EAT thought it had), and the employment tribunal had substituted their view for that of the employer.