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Dismissal for social media misuse
In British Waterways Board v Smith the EAT overturned a Tribunal decision that a dismissal was unfair where the individual was dismissed for gross misconduct for comments on Facebook.
In a cautionary tale for all social media users, the Claimant had made derogatory comments on Facebook about his managers and work, including asserting that two years earlier he had been drinking whilst on standby – something which is prohibited by the company. He denied he had been drinking and claimed that the comments were merely banter but he was nonetheless summarily dismissed for gross misconduct on the basis that his comments had undermined the confidence which his employer or the public could have in him.
The Tribunal found that he had been unfairly dismissed because the employer had apparently failed to consider the Claimant’s mitigation, including the point he made that some claims made on Facebook are exaggerated or not true. It did, however, find 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.
The EAT overturned this decision. It said that these cases should be determined according to the ordinary principles of law and that, having found the procedure was fair, it followed that the Tribunal must have taken into account the Claimant’s mitigation and that it had thereby substituted its view for that of the employer in deciding the dismissal was unfair.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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