The EAT has held that it was fair to dismiss an employee who made derogatory comments about his employer on Facebook, despite the fact the postings had taken place two years before dismissal and that the employer had been aware of them throughout that period.

Mr Smith was part of a team responsible for the upkeep of canals and reservoirs. The team worked on a rota pattern and was on standby for one week in every five, during which employees were not permitted to consume alcohol.  During his employment, Mr Smith raised a number of grievances. During the grievance process, one of Mr Smith's managers supplied incriminating comments Mr Smith had made on his Facebook page to the HR team. Mr Smith's manager had known about the comments for some time and had discussed it with the HR team when he first discovered them, although the Company had decided not to investigate further.

Some of the comments made by Mr Smith included:-

  • going to be a long day I hate my work
  • … its not the work it’s the people who ruin it nasty horrible human beings
  • on standby tonight so only going to get half p***** lol

Mr Smith was subsequently suspended from work after which he was dismissed for gross misconduct. The EAT found the dismissal to be fair.

This case shows that an employer that has failed to respond to an earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. The employer in this case also deliberately searched for evidence against an employee who had raised grievances. 

The case is a useful reminder to employers of the importance of maintaining an effective social media policy.

The British Waterways Board v Smith [2015] UKEAT/0004/15.