The EAT found that a dismissal was fair where an employee had made derogatory comments about his employer on Facebook, even though the dismissal was two years after the comments were made (British Waterways Board v Smith).

In addition to the derogatory comments on his Facebook page, Mr Smith had also made comments about drinking while on standby for work, which was against company policy. His manager had known about the drinking comment in 2012, but no action was taken. Mr Smith raised various grievances in 2013 as a result of which his manager flagged up the Facebook comments, to demonstrate in the investigation that the issues were not all one-sided. He was, as a consequence, summarily dismissed. The EAT found that the dismissal was fair.

This demonstrates that, whilst it is advisable to act without unnecessary delay in cases of misconduct, an employer that has failed to do so will not necessarily lose the opportunity to take action at a later date.