It is that time of year again: the kids are going back to school and many are returning to work after a few weeks off over the summer. With memories of sun and sangria fading rapidly, the use of social media tools such as Facebook provide an opportunity to share/boast/gloat about our experiences. All too often these tools are proving an employee’s downfall. Only this morning an article from the MailOnline caught my eye “Nursery nurse, 18, suspended from her job for branding children 'w******' and 'a*******' during Facebook rant in which she claimed the youngsters bit and spat at her”. The article rightly refers to the horrified parents who saw the posts and confirmed that the individual concerned, Ms Neeson, had not replied to their request for a comment. Whatever the true facts of the case and its potential outcome (although I would take a bet that she won’t last long at the nursery) it reminded me of the recent decision in the EAT in the case of British Waterways Board v Smith.
One aspect of this case was that the employer was entitled to rely on Facebook posts, some of which the Claimant claimed were untrue, when taking the decision to dismiss. By way of brief background, the Claimant had made jokes on Facebook about being drunk on standby (which was not permitted by his employer) but claimed that they were untrue and simply banter (he also made derogatory comments about colleagues). In addition, in his defence he suggested that his account had been hacked and his security settings changed from private to public. The employer concluded that his actions constituted gross misconduct and he was dismissed. The ET at first instance concluded that the employer had conducted a reasonable investigation and had a genuine belief based on reasonable grounds of the Claimant’s misconduct (applying the BHS v Burchell test). However, it held that the dismissal was unfair, as it took the view that the employer had failed to properly consider the Claimant’s mitigation evidence (length of service; unblemished record; Facebook security settings ‘hacked’; bullying allegations the Claimant had made against his manager; and the fact that some of the Facebook allegations were not true).
The EAT disagreed and concluded that the ET had substituted its own view for that of the employer. Given that the ET had found that the Facebook entries were made, that a reasonable investigation was followed, that the employer had lost confidence in the employee, and that a fair procedure was followed, the only decision that an ET properly directing itself could make was that dismissal was not unfair. The case serves as a reminder to employers to ensure that a reasonable investigation is carried out; to base any disciplinary decision on the evidence before it; and to ensure that mitigation evidence is considered. It also serves as a stark warning to employees to treat online social media forums with caution. What goes online unfortunately stays online….