In British Waterways Board –v- Smith, the EAT had to decide whether comments made by an Employee on Facebook which he later claimed to be untrue was sufficient to amount to gross misconduct. Mr Smith had made derogatory comments on his Facebook page about his managers and work claiming that two years earlier he had been drinking whilst on standby. There was a policy that employees were not permitted to consume alcohol during a standby period. During the disciplinary process, Mr Smith argued that he had not in fact been drinking and that comments on Facebook were banter. The British Waterways Board dismissed him for gross misconduct stating that his comments had undermined the confidence in him.
The Employment Tribunal found that Mr Smith had been unfairly dismissed. However the EAT overturned the decision and held that the dismissal was fair. They stated that having found the procedure, leading up to the dismissal to be fair, the Employment Tribunal must have concluded that Mr Smith’s mitigation had been taken into account and therefore the Employment Tribunal should not have substituted their view for that of the employer. It was held that the employee had been fairly dismissed for gross misconduct.
It is amazing how employees continue to be so naive in relation to comments made on social media.