The recent case of British Waterways Board v David Smith has highlighted the potential risks for employees who make derogatory comments about their employer through social media.
British Waterways Board v David Smith – Case Overview
The Claimant, Mr Smith, had worked for the British Waterways Board since 2005 as a waterways operative, responsible for the upkeep of canals and reservoirs. He was required to be on standby duty one week out of every five, in order to respond to emergency situations.
Mr Smith raised a number of grievances against his employer, and a mediation was organised to deal with them. However, one of Mr Smith’s managers put forward incriminating Facebook comments, made by Mr Smith, in reference his managers. These offensive comments were made while Mr Smith was on standby duty. It also came to light that Mr Smith had made comments on social media in 2011, which revealed that he had been drinking alcohol while on standby duty – which was not permitted.
The employer subsequently commenced an investigation into the comments made on social media, including those made back in 2011, and Mr Smith was subsequently dismissed. Mr Smith admitted making the statements on Facebook, but argued that he had not intended to offend anyone and had merely tried to indulge in banter. He explained that it was common practice among his colleagues to “slag off” the person who was on standby duty, and also said that he had in fact not been drinking. Mr Smith also stated that he had believed that his Facebook settings were ‘private’, and therefore not accessible by the general public.
The employment tribunal concluded that Mr Smith’s dismissal was unfair. The decision was subsequently appealed by British Waterways Board to the Employment Appeals Tribunal (EAT). The EAT allowed the appeal, and found that having carried out a thorough investigation, the employer had reasonable cause to suspend and dismiss Mr Smith. It held that the dismissal was ultimately fair.
The Importance of a Well-Drafted Social Media Policy
The case highlights the importance of employers having a well-drafted social media policy, and is also a good example of an employer being able to rely on earlier acts of misconduct at a later date – as the misconduct in this case predated the dismissal by two years, and the employer had known about it for a significant time.
If you would like to update your company’s social media policy, or wish to clarify any issue discussed in this article, please do not hesitate to contact Slater Heelis. We can help you.
In the meantime, why not read our social media policy guide for businesses?