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Historic offences can still lead to fair dismissal
The EAT has held in a recent case of British Waterways Board t/a Scottish Canals v Smith that an employer was fair in dismissing an employer for derogatory comments made by an employee on Facebook even though those comments placed on Facebook were placed some two years prior to the disciplinary hearing and already known to the Employer.
In this particular case the employee had posted comments on Facebook in 2011 in which he made derogatory comments about the company. These comments came to the attention of his line manager who took no action at that stage.
In May 2013 the employee raised a number of grievances against the employer and as part of the investigation the employees’ immediate line manager raised the issue of the comments on Facebook. The employee’s manager had in fact been aware of the comments since 2012 and raised the comments during the grievance in order to demonstrate that the issues that the employee was raising were not “one sided”.
The Employee had been called to a mediation meting to discuss his grievance and upon attending the meeting he was suspended with immediate effect in respect of the comments which were made on Facebook. He was invited to a disciplinary hearing on the 4th June 2013 in which he was summarily dismissed for gross misconduct in relation to the comments.
The employer’s social media policy prohibited “any action on the internet which might embarrass or discredit BW (including defamation of third parties for example by posting comments on bulletin boards or chat rooms)”. The Employment Tribunal initially found the dismissal was unfair partly because although the employer had followed a fair procedure the comments were historic and the Company had been aware of the comments for some time and did nothing about it.
The Employment Appeal Tribunal overturned that decision finding the dismissal decision to be fair.
This case demonstrates that if an employer fails to respond to an employee’s early act of misconduct this will not necessarily lose them the opportunity to take action at a later date. The misconduct in this case pre-dated the dismissal by 2 years and the employer had known about it for a considerable amount of time. It is clearly sensible to take action as soon as the employer becomes aware of any potential misconduct. The case also demonstrates the importance of ensuring that Employers have effective social media policies and that Employee act with caution when using social media.
Chris Boyle, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor