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Can you be sacked for Facebook banter? Yes you can!

10th Aug 2015

The Employment Appeal Tribunal was recently asked to decide whether the dismissal of an Employee was unfair when it was based on comments made on Facebook which he claimed were untrue?

No, it was not unfair said the EAT in British Waterways Board v Smith.

This Case is something all Employees should be aware of if they are in the habit of talking about their work on Twitter, Facebook & other Social Media platforms.

What did the Employee do?

The Employee, who argued that his dismissal had been unfair, had made derogatory comments on Facebook about his Managers and place or employment. He had specifically boasted that two years earlier he had been drinking whilst on "standby" - while on "standby" the consumption of alcohol was forbidden.

He  denied that he had in fact been drinking, and claimed that the comments were no more than light hearted banter. That view was not shared by his Employer who dismissed him on the grounds of gross misconduct. They argued that as his comments had been published they undermined the confidence they, as his Employer or, the public could have in him.

What did the Tribunal say?

The Employment Tribunal decided 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

but 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, are simply not true.

What did the EAT decide?

The EAT overturned that decision and held that the dismissal was fair. The Appeal Judges ruled 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).

Tony Marriott - Head of Employment Law at Brown Turner Ross commented:

"The key point here is that the Employer was found to have followed a procedure when investigating the issue that was fair, thorough & reasonable. Accordingly they were believed to have taken into account the mitigation advanced by the Employee. They were entitled to the view that claiming (frivolously or not) on a public Social Media platform to have been drinking (when that was strictly forbidden), had damaged their image and undermined confidence in them.

Employers should ensure that

  • they investigate matters by reference to sound Policies & Procedures andthat
  • they have a written Social Media Policy for Employees

I can help with both.

For Free initial advice on any Employment Law issue or for a Free Employment/HR Audit call Tony on 0800 195 7517