Employment - Derogatory comments on Facebook

In British Waterways Board v Smith [2015] UKEAT/0004/15, the EAT considered whether it was fair to dismiss an employee that made derogatory statements about their employer on Facebook when the employer had been made aware of the misconduct 12 months before the dismissal.

It was held that it did not matter that the misconduct had taken place nearly two years before dismissal or that the employer had been aware of the misconduct throughout that period. The employer could still rely on it being a potentially fair reason and that it had reasonable grounds to believe that the employee had acted in a way contrary to the employment relationship. That said, it should be remembered that the longer the delay the more likely a Tribunal will find the employer has acted outside the band of reasonable responses which is one of the key tests when deciding if a dismissal should be deemed unfair.

Moreover, the employer was not criticised by the Tribunal for deliberately searching for evidence to support a dismissal finding as part of the investigatory stage of the disciplinary process.

Posted on 09/09/2015 by Ortolan

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