EAT upholds dismissal of canal worker for social media 'banter'

The EAT found that the dismissal of former canal worker David Smith by Scottish Canals after he posted on his Facebook account that he had been drunk on a 'standby' shift and made derogatory comments about his supervisors had been fair. It overturned a decision by an employment judge last year, finding that the judge had "substituted its own views for that of the employer".

Employment law expert Jonathan Coley of Pinsent Masons, the law firm behind Out-Law.com, said that although the decision did not create any new laws, it was "useful confirmation that the normal rules of unfair dismissal apply to comments made on Facebook".

"It is also a reminder to employers of the importance of having a suitable social media policy in place. In this case, the policy banned social media posts that could 'embarrass or discredit' the employer, meaning that it was entitled to refer to Smith's comments as part of a work-related investigation regardless of whether he thought the posts were private," he said.

The EAT heard that Smith had made a number of "highly offensive and inflammatory" comments about his supervisors and team leaders on Facebook, as well as "specific and elaborate" comments about drinking while in a "position of trust". After an investigation, Smith's employer found that he had "undermined the confidence that his employers required to have in him", and that the comments "amounted to gross misconduct". Smith was dismissed in June 2013.

Smith admitted to making the comments, but said that he had not intended to offend anyone and "had been indulging in banter", according to the EAT. He also said that he had not been drinking, and that his Facebook page "must have been hacked" and his security settings switched from private to public. He also said that it was "convenient" that the comments had come to light while he was in the process of bringing a grievance against his employer.

In order for dismissal of an employee to be "fair" it must be for one of the potentially fair reasons set out in the 1996 Employment Rights Act (ERA) and dismissal must be one of the responses open to a reasonable employer to adopt in the circumstances. The original employment tribunal found that Scottish Canals' investigation of Smith's comments had been reasonable, but said that its operations director had not considered any of the mitigating circumstances put forward by Smith. For this reason, it found that the company had acted unfairly when dismissing him.

The EAT ruled that, by doing so, the employment tribunal "[substituted] its own view for that of the employer". It was for the tribunal to decide whether the employer had taken the mitigating factors into account, but rather to "decide if the decision made ... was within the range of reasonable decisions open to an employer in light of the investigation carried out by the employer".

"This employer was found to have carried out a procedurally fair, and sufficient, investigation," the EAT judge said. "Therefore the [employment tribunal] were substituting their own view of the weight they would have put on the matters had they been the employer."

"The [employment tribunal] has not considered [Scottish Canals'] views about what did happen, and asked itself if [Scottish Canals'] reaction in light of those views was within the reasonable range of responses," the judge said.

The EAT declined to return the case to an employment tribunal, since "there is only one answer to the question which is that the dismissal was not unfair".