Good afternoon, on a sunny Friday we thought it fitting that this weeks’ case concerns an employee posting drunk comments on Facebook when they were on standby to work. Maybe it’s best not to sneak off early to the beer garden.

The question this week is:

Is it fair dismiss to an employee for a Facebook status he posted 3 years ago?

Mr Smith, the Claimant, had worked for British Waterways, the Respondent, for eight years. The Claimant’s job was to maintain canals and involved being on standby one week in every five. The team he worked in was not a cohesive one and there was a history of managers not treating staff with respect.

The Claimant raised a formal grievance with his HR manager about the treatment of staff and was set to attend a mediation hearing to try and resolve the matter. However, the Respondent cancelled the mediation and suspended the Claimant after being sent copies of the Claimant’s Facebook posts.

The Claimant had posted several offensive comments about his managers on Facebook including;
– going to be a long day I hate my work

– that’s why I hate my work for those reasons it’s not the work it’s the people who ruin it nasty horrible human beings

– why are gaffers such pricks, is there some kind of book teaching them to be total w*****s

There was also a post from three years ago about being under the influence whilst on standby for work, something which they were expressly told not to do.

– on standby tonight so only going to get half p****d lol

The Claimant admitted to making the statements but added he thought that his Facebook was private and that he had not expressly mentioned who he worked for. The Claimant also said that it was a running joke amongst employees to make jokes about drinking whilst on standby as they knew they weren’t allowed and that he was not drinking when he wrote the Facebook post.

After a thorough disciplinary investigation the Respondent dismissed the Claimant as they believed the public nature of the posts meant that they and the public could no longer trust the Claimant when he was on standby.

Had an emergency happened that night and the Claimant was intoxicated it would have reflected very badly on both the Claimant and Respondent. He was thereby dismissed for gross misconduct.

The Claimant appealed his dismissal and after this was rejected he brought claims for unfair dismissal and victimisation as he had been dismissed whilst an ongoing grievance was being investigation. The Employment Tribunal (ET) rejected the victimisation claim but did allow the unfair dismissal claim. It held that the fact the Facebook statuses were posted 3 years prior to dismissal and that over that period of time the Claimant had been a capable and trustworthy employee. Therefore the decision to dismiss fell outside of the reasonable range of responses.

The Respondent appealed the unfair dismissal decision to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal it held that the Respondent had reasonable cause to suspend the Claimant, had carried out a thorough investigation, the investigation had been fair and that meant the decision to dismiss the Claimant could only be fair. It held that the ET’s decision was perverse and set aside the original ET decision.

Today’s lesson:

Yes, in this circumstances it was fair. Because the Employer had carried out a reasonable investigation and the content posted justified dismissal the time gap between posting and discovery does not matter. This meant that their decision to dismiss could not be deemed unfair.

Here it is worth noting that the public nature of the posts as the Employee did not have a private account. This is crucial as even though the post was 3 years ago it was visible to anyone who looked for it.

To view another high profile case concerning social media please click here.