Employers need to have a robust social media policy to protect them against disciplinary action - as shown by a recent Employment Tribunal case regarding unfair dismissal.

David Smith was recently fired after posting offensive comments on Facebook. In the case British Waterways Board v Smith, in August 2015, the employer argued it was fair to dismiss Smith despite the fact that he posted the comments in 2013.

The Employment Appeal Tribunal (EAT) found in favour of the employer because the British Waterways Board had a social media policy defining the breach as gross misconduct.

This decision follows on from the case of Game Retail Limited v Laws earlier this year, in which an employee was deemed to have been fairly dismissed following several inappropriate comments on a social media account, linked to his employer.


Claimant brought a number of grievances against colleagues in 2013

Claimant made derogatory comments on Facebook about his managers and work

It was claimed he was drinking while ‘on call’, which he was not permitted to do

Claimant denied drinking and claimed the comments were banter

The dismissal was on the grounds of gross misconduct

The EAT decided that there is no need for special rules in respect of misuse of social media in an employment context and that the ordinary rules and principles of employment law should apply.

How to ensure you are protected

It is essential to ensure you have a robust policy in place. If British Waterways Board hadn’t had that a robust policy in place, it would have been almost impossible to convince the EAT to find in its favour, and could have been extremely costly

It is therefore important that where an employer is taking disciplinary action for inappropriate comments made on social media, a fair and reasonable disciplinary process must be followed.

The EAT has confirmed that regardless whether the misconduct has occurred using social, media, the same rules apply for the way in which the employer treats that misconduct as a disciplinary matter.

It is strongly advised that employers have issued employees with a clear social media policy that must state what types of comments and in what circumstances are not acceptable. That policy should state the disciplinary consequences of non-compliance.

Equally, the Company’s disciplinary policy must indicate the level of disciplinary action, which could include dismissal that may be taken if an employee breaches the social media policy.

By Jonathan Melia, at Moorepay