The Employment Appeal Tribunal (EAT) has held that it was fair to dismiss an employee who had made derogatory comments about his employer on Facebook two years previously, even though the employer had been made aware of the misconduct at the time.


Mr Smith worked on the maintenance of canals. He was summarily dismissed for gross misconduct for comments he had made on Facebook two years previously. His employer had a robust social media policy which prohibited “any action on the internet which might embarrass or discredit the company (including defamation of third parties, for example by posting comments on bulletin boards or chat rooms).” 

During the investigation of a grievance brought by Mr Smith in 2013, his manager referred to comments made by the employee in 2011 on his Facebook page. These comments had been brought to the attention of HR at the time but no action had been taken. The comments specifically referred to the fact that Mr Smith had been drinking alcohol whilst on standby duty (which was prohibited by the company). He also repeatedly posted comments about how he hated his work and he made derogatory statements about his employer and his supervisors. Following a disciplinary investigation and hearing, Mr Smith was summarily dismissed for gross misconduct.

Mr Smith brought a claim in the Employment Tribunal for unfair dismissal.

What does this mean?

The original Tribunal upheld Mr Smith’s claim stating that the company’s decision to dismiss had fallen outside the band of reasonable responses. It held that the company had not taken into account Mr Smith’s unblemished record and the fact that it had been aware of the Facebook comments since 2011 but had taken no action. In relation to drinking alcohol whilst on standby, Mr Smith had denied that he had actually been drinking that night and there had been no emergency or risk to life or property.

However, the EAT held that the Tribunal had wrongly substituted its own view of the weight they would have put on matters had they been the employer, rather than using the range of reasonable responses test. The Tribunal didn’t help itself by making its own findings of fact (e.g. stating that the Facebook comments were made three rather than two years previously) and failing to recognise that the appeal officer had taken all mitigating factors into account. The Tribunal had held that there was a reasonable investigation and a fair procedure was followed. The EAT therefore confirmed that it was up to the company to decide what action to take and held that the decision to dismiss was within the range of reasonable responses open to it and was therefore fair.

What should employers do?

This case shows that an employer who has failed to respond to an earlier act of misconduct will not necessarily lose the opportunity to take action later. Having said that, it is always advisable to deal with any misconduct issues in a timely manner. The case is also a useful reminder of the importance of having a robust social media policy in place.

Case reference: The British Waterways Board v Smith