Sacking employees for negative comments on social media. Is it fair dismissal?

Social media blurs the lines of publicly and privately available information. Even with stringent privacy settings on social networking sites such as Twitter and Facebook, nothing is ever truly private online.

While social media is increasingly used as an outlet for disgruntled customers to make their negative views public, businesses often fail to recognise the potential threat of online criticism from their own employees.

Negative comments on social media can quickly damage a brand’s reputation. While it is inevitable that even the best firms will receive negative comments online from clients, it is important that firms legally protect themselves against an employee’s inappropriate use of social media.

The recent case of The British Waterways Board v Smith demonstrates what firms can do if an employee makes a damaging comment online.

The British Waterways Board v Smith

Smith, who worked for The British Waterways Board (BWB) between April 1 2005 and June 4 2013, was part of a team responsible for the maintenance of canals and reservoirs. He was on standby for one week in every five and wasn’t permitted to drink alcohol during this period.

Smith posted comments on his Facebook page about drinking alcohol while on standby, as well as making derogatory statements about his supervisors.

BWB’s social media policy stated that employees were not permitted to post anything online that could embarrass or discredit the firm.

The Facebook comments incriminated Smith professionally as the BWB’s disciplinary policy stated that employees could be dismissed for gross misconduct, citing serious policy breaches as an example.

In May 2013, Smith raised a series of grievances that were followed by a mediation meeting. At the meeting Smith’s manager produced the incriminating comments to show that the grievances were not one-sided.

While both the manager and the HR team had known about one of the comments since 2012, when an initial decision was made to not take any further action, Smith was suspended from work following the mediation meeting. The employee was later dismissed for gross misconduct at a disciplinary hearing on June 4 2013.

Smith was released on the basis that the comments had brought his professional capabilities into question while also discrediting The British Waterways Board in a public forum.

The appeal

Smith applied to the Employment Tribunal (ET) which ruled that he was unfairly dismissed. However, the decision was appealed and the Employment Appeal Tribunal (EAT) later ruled that The British Waterways Board was fair to dismiss the employee as the decision was within the range of reasonable responses available to an employer.

Taking action

While the comments had been posted online two years prior to the dismissal and the employer had been aware of the comments for at least a year, the decision demonstrates that employers are still able to discipline and dismiss employees for misconduct at a later date.

The case shows that employers need to adopt a strict social media policy and ensure that all employment procedures and documents are legally watertight to protect the firm against any employee malpractice. This will ensure that it is able to legally defend itself should a situation like this arise.

For more information on unfair dismissal, contact the Employment team on 01772 258321.

Find out more about HR Compass, Harrison Drury’s specialist employment law product. HR Compass comprises three core components designed to offer seamless financial and business continuity protection for businesses. These include an employment law health check, expert fixed-fee employment law advice and an insurance policy to protect against the cost of employment claims.