Decision: Yes, according to the Employment Appeal Tribunal in the case of British Waterways Board v Smith. Mr Smith worked as a manual worker for British Waterways and worked on a rota pattern where he was on standby for one week in every five. Whilst on standby, employees were not permitted to consume alcohol.

During his employment, Mr Smith raised a number of grievances and a mediation was arranged to address these. At the mediation, Mr Smith’s manager disclosed some derogatory Facebook comments that Mr Smith had made about British Waterways and Mr Smith’s managers some two years previously. He had also bragged about consuming alcohol whilst on standby. British Waterways had been aware of these comments prior to the mediation. Mr Smith was suspended from work and was later dismissed for gross misconduct following a disciplinary hearing.

British Waterways’ disciplinary policy expressly referred to “any action on the internet which might embarrass or discredit British Waterways” as constitut- ing gross misconduct. At the Tribunal stage, it was found that Mr Smith had been unfairly dismissed on the basis that British Waterways had failed to take into account any potentially mitigating factors, such as Mr Smith’s unblem- ished service record and the fact British Waterways had been aware of the Facebook comments for some time.

The Employment Appeal Tribunal overturned the Tribunal decision and found that Mr Smith had been fairly dismissed. It held that the Tribunal had unfairly criticised the disciplinary manager’s approach to the mitigating factors and by doing so, the Tribunal had essentially substituted its own view for that of the employer when it held that British Waterways did not give weight to the mitigating factors raised by Mr Smith in relation to his dismissal.

Impact: It is interesting to note that there was no criticism of British

Waterways for taking Mr Smith’s previous behaviour into account and relying on misconduct that had been committed some years ago and of which it had been aware for some time. The Employment Appeal Tribunal held that Mr Smith’s behaviour undermined the trust and confidence between the two parties and his behaviour was a clear breach of policy leaving British

Waterways open to public condemnation. This case also highlights the importance of having a well drafted social media policy, which makes it clear that even private comments made on social media can result in disciplinary action.

Whilst we would not recommend taking this approach, this case also demon- strates that where an employer has failed to take action or delayed in responding to misconduct, it does not necessarily mean that they will lose the right to take action at a later date.