The British Waterways Board (t/a Scottish Canals) v Smith

Social-media misconduct cases are governed by the ordinary law of unfair dismissal. Under Employment Rights Act 1996, an Employment Tribunal must assess whether the employer’s decision fell within the range of reasonable responses. It must not substitute its own assessment of the employee’s conduct, risk, mitigation or appropriate sanction.

Where the employer reasonably investigated admitted online posts, genuinely and reasonably concluded that they destroyed the trust required for standby work, and followed a fair procedure including an appeal, dismissal may be fair. On the facts found, the Tribunal’s contrary conclusion resulted from impermissible substitution and could not stand.

The employee was summarily dismissed after an investigation established that he had made public Facebook posts containing offensive remarks about colleagues and statements that he would drink alcohol while on standby. He maintained that the alcohol comments were banter and advanced mitigation, including his record and the age of the posts.

The Glasgow Employment Tribunal found that the employer had a genuine belief on reasonable grounds following a reasonable investigation, and that the procedure was fair. It nevertheless held the dismissal unfair, on the basis that dismissal lay outside the range of reasonable responses. The employer appealed. The central issue was whether the Tribunal had substituted its own view for that of the employer when applying the statutory test of fairness.

1. Appeal allowed. The Employment Tribunal erred in law. Its finding that the dismissal was unfair was set aside, and the Employment Appeal Tribunal substituted a finding that the dismissal was not unfair.

2. There are no special legal rules for Facebook or other social-media misconduct. The ordinary principles governing unfair dismissal apply.

3. The Tribunal had correctly found that the dismissal was for misconduct; that the employer had a genuine belief in the relevant conduct on reasonable grounds after a reasonable investigation; and that the procedure was fair. It was then required to ask whether the employer’s reaction, on the facts as the employer reasonably viewed them, fell within the range of reasonable responses.

4. Instead, the Tribunal made its own findings about the absence of actual risk, the employer’s supposed lack of previous difficulty with alcohol use on standby, and the weight to be given to mitigation. That was an impermissible substitution of the Tribunal’s judgment for the employer’s. Its references to ordinary misconduct rather than gross misconduct and to an incorrect lapse of time reinforced that conclusion.

5. The Tribunal’s reasons did not establish that the dismissing officer had refused to consider mitigation. They were better understood as criticism of the weight given to it. In any event, the appeal officer had considered mitigation. On the facts already found, there was only one permissible conclusion: the dismissal was fair. No remission was required.

• Employment Appeal Tribunal: allowed the employer’s appeal in [2015] UKEAT 0004_15_0308, set aside the unfair-dismissal finding, and substituted a finding that the dismissal was fair.
• Employment Tribunal, Glasgow: decision sent to the parties on 23 October 2014. It rejected the protected-disclosure case but found the employee unfairly dismissed.