Every week we advise clients on issues arising out of social media use. Despite this frequency there are still relatively few reported cases on this matter. So when case reports are published, we read them with interest. Indeed, we read the case of British Waterways Board v Smith keenly…only to be a little disappointed!
Mr Smith had been dismissed for posting derogatory comments on Facebook about his work and manager. He also posted comments about him drinking alcohol on duty (contrary to company policy). Mr Smith described the comments (posted a couple of years before his dismissal) as ‘banter’.
So was Mr Smith’s summary dismissal a fair dismissal?
No, said the tribunal, primarily on the basis that British Waterways had failed to consider Mr Smith’s mitigation, including his assertion that some claims made on Facebook had been exaggerated or were not true.
However, applying the standard ‘reasonable responses’ test the EAT overturned that decision and held that the dismissal was fair.
Whilst the EAT found the dismissal fell within the band of reasonable responses, the EAT declined to give any further guidance on social media dismissals. As in previous cases (Game Retail Ltd v Laws) the EAT simply noted that cases of this kind must be determined according to the ordinary principles of unfair dismissal.
Thus employers are reminded to ensure policies are clear and practice is consistent if it wishes to show a dismissal for misuse of social media to be a reasonable response by a reasonable employer.
For further information, help or advice please contact Tim Davies on 0191 211 7927 or [email protected].