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In Smith v British Waterways Board C was dismissed for making offensive comments on Facebook.  The comments had been made two years previously and included statements saying "going to be a long day I hate my work"  and "on standby tonight so only going to get half p****d lol".

His employer had been aware of the comments, but had chosen not act until C raised a grievance in relation to various other matters.

The Employment Tribunal (ET) found that, first, the decision to dismiss fell outside the band of reasonable responses as no other reasonable employer would have dismissed in these circumstances given the historic nature of the comments and, second, the claimant had demonstrated in the years since the comments had been made that he was not a risk and could be trusted.  The employer appealed.

The Employment Appeal Tribunal allowed the appeal and found that the ET had substituted its own views for that of the employer: A reasonable investigation had taken place, a fair procedure had been followed, the facts upon which C had been dismissed had been established and the employer had lost confidence in the employee.  In short, the dismissal was not unfair.

The case shows that employers who do not respond immediately to an act of misconduct do not necessarily lose the right to take action at a later date. Whilst this  case is in line with the previous decision of Williams v Leeds United Football Club[2015] EWHC 376 (QB), employers who want to take disciplinary action arising from the use or mis-use of social media would do well to keep the following in mind:

  1. An employer should have a clear social media policy setting out what is and is not acceptable behaviour.  Employers need to consider:
    • What is acceptable personal use of social media during or outside of working hours
    • What use is absolutely forbidden (e.g. not commenting on the employer or business related topics without prior authorisation)
    • Guidelines for use of social media (e.g. when to make it clear that opinions are personal, not being offensive, etc)
    • The consequences of breaching the policy
  2. Whilst the employer in this case was found to have fairly dismissed the employee, an employer will have a far easier time of proving it acted reasonably if it acts immediately upon becoming aware of an issue.

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