The UK Employment Appeal Tribunal has reiterated that there is no need for special rules in respect of cases that involve the use of Facebook. They fall to be determined in accordance with the ordinary principles of law applied in all cases. That was the decision in British Waterways Board v Smith [2015] UKEATS/0004/15/SM, EAT.

The British Waterways Board operates in Scotland under the name “Scottish Canals”. It employs a large number of manual workers who work on a seven-day rota and are also on standby for seven days one week in every five. During their standby period they are not permitted to consume alcohol. The Claimant was employed in this capacity until his dismissal for making offensive comments on Facebook about his supervisors as well as suggesting that he was drinking alcohol while on standby duty.

The Employment Tribunal found that the dismissal was unfair on the basis that the dismissal officer had failed to consider mitigation put forward by the Claimant, in particular that set out below:

1. The Claimant claimed that someone had hacked into his Facebook account and changed the security settings without his knowledge so that he had not realised that his comments would be made public.
2. A complaint about the comments had only been made three years after the comments had been posted.
3. The Claimant had eight years of service with an unblemished record and had consistently had good performance reviews.
4. The comments regarding drinking were “banter” and were not in fact true.
5. The Claimant had apologised for the comments made.

The EAT held that the tribunal had substituted its own views for that of the employer. The tribunal ought to have confined its consideration to facts relating to the Respondent’s handling of the Claimant’s dismissal; the genuineness of its belief and the reasonableness of the grounds for its belief about the conduct of the Claimant at the time of his dismissal. Instead the tribunal had introduced its own findings of fact and used its findings of fact to support its conclusion that the dismissal was unfair.

The tribunal’s reasons really involved being critical of the weight that the dismissing officer put on mitigation, rather than finding that he refused to consider it. The tribunal had found that the procedure was not unfair. It would not have done so if it had found that a decision maker refused to listen to part of the case. In any event, the EAT found that any such defect had been rectified by the fact that the mitigation advanced had been taken into account by the officer hearing the Claimant’s internal appeal.

There is no need for special rules in respect of cases which involve the use of Facebook. They fall to be determined in accordance with the ordinary principles of law applied in all cases. Thus, on the facts found that the entries were made, that a reasonable investigation had taken place, that the employer had lost confidence in the employee, and that a fair procedure was followed, the only decision that a tribunal properly directing itself could make was that dismissal was not unfair.

The EAT took the view that there was no point in remitting the case back to the employment tribunal as on the facts found by the tribunal there was only one possible conclusion which was that the dismissal was not unfair.