The recent case of The British Waterways Board -v- Smith that went to the Employment Appeal Tribunal illustrates the relevant issues in relation to that question. In that case the employee, who had over 7 years’ service, worked on a rota pattern which involved one week in every five where he was not permitted to consume alcohol because he was on standby. The employer’s disciplinary policy, in the section relating to gross misconduct, cited that serious breaches of their policies were an example of gross misconduct. It then had a social media policy which banned ‘any action on the internet which might embarrass or discredit us (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)’.

The employee concerned raised a number of grievances and, during a mediation, arranged to try and deal with them, his manager supplied incriminating comments that the employee had placed on his Facebook page in order to show that issues were not one-sided. Some of the posts had been made 2 years earlier and related to drinking alcohol whilst on standby i.e. the manager had known about this for at least a year and had apparently at the time discussed it with the HR team. The HR team had not raised it with the employee at the time or investigated the issue further. These are the sorts of comments we are talking about:

(i) “Chipper training today and supposed to go home after it w***** supervisor told the trainer to keep us as long as he could the f***** don’t even pay u for this s***”
(ii) “Hard to sleep when the joys of another week at work are looming NOT”
(iii) “Ha what joy, 2 sleeps til back to my beloved work NOT”
(iv) “Good old bw cant wait to see all my friends again lol”
(v) “Going to be a long day I hate my work”
(vi) ”That’s why I hate my work for those reasons its not the work it’s the people who ruin it nasty horrible human beings”
(vii) “Why are gaffers such p*****, is there some kind of book teaching them to be total w******”
(viii) “On standby tonight so only going to get half p***** lol”
(ix) “Im on vodka and apple juice first time ive tried it no to shabby”
(x) [in response to the latter comments someone had noted the employee was on ‘floor alert’ and asked if the he was going to let everyone drown, to which he had responded] “Just the c**** from Braid Square lol”
The employer subsequently suspended the employee to investigate his Facebook account and, following a disciplinary hearing, dismissed him for gross misconduct, finding that he had made derogatory comments about the employer and, because he claimed to be drinking alcohol whilst on standby, had brought his capabilities into question, leaving the company open to condemnation in a public forum.

At the Tribunal hearing for unfair dismissal, the Tribunal found that although the company had followed fair dismissal procedures, the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted. They felt the employer had not taken into account the employee’s unblemished service record and that they had been aware of the comments for a very long time and not done anything about it. In relation to the issue of having consumed alcohol whilst on standby, the Tribunal felt there had been no emergency on the night in question and therefore no impact on colleagues or risk to life or property and, again, this had happened a long time ago and there had been no repetition.

The employer appealed this decision and, when it got to the EAT, they found the dismissal was actually fair. They felt that the Tribunal had substituted its own view for that of the employer when it found the company did not give weight to the mitigating factors. They found that those were issues for the employer to decide and that dismissal had been within the range of reasonable responses open to an employer. The EAT obviously felt it was inappropriate for the Tribunal to make its own findings in relation to the impact of drinking alcohol whilst on call and in deciding that the company had no issues with it.

This case is interesting because the EAT didn’t appear to criticise the employer for relying on something that had happened a long time ago, which they had known about and had not done anything about. I would, however, urge caution in taking this as free rein to allow managers to drag up historical things that they haven’t addressed at the relevant time as I suspect this was probably fact-specific.  For example, did the EAT lose all sympathy for this individual having seen the history, the papers and all the grievances?

What it does remind us is that if employees have published on the internet negative comments, this may be something you can take action about if you’ve got an effective social media policy in place. Where you have to be more careful is where perhaps comments are not published, so they are made verbally or perhaps internally on email between two colleagues. In those circumstances it is probably a lot harder to dismiss an employee for some of the day to day banter that goes on between staff, perhaps being critical of their managers.