In British Waterways Board v Smith UKEATS/0004/15/SM, the Employment Appeal Tribunal (EAT) examined whether an employer acted lawfully when dismissing an employee for gross misconduct due to remarks he had made on Facebook two years earlier.

Mr Smith was employed as a manual worker for British Waterways (BW). In 2013, during a mediation to deal with a grievance he had raised, BW disclosed a number of Facebook comments he had made in 2011 in which he referred to drinking alcohol while on standby, which was in breach of BW’s working rules. BW had known about these comments since 2012 but had taken no action at the time. However, it carried out an investigation during the mediation process in 2013 which unearthed further Facebook comments about drinking while on standby, as well as offensive remarks about Mr Smith’s managers.

Disciplinary proceedings against Mr Smith ensued, as a result of which he was dismissed for gross misconduct. The Employment Tribunal upheld Mr Smith’s claim for unfair dismissal because it believed that BW had not considered a number of potentially mitigating factors, including the historic nature of the comments, Mr Smith’s claim that the comments about drinking alcohol were untrue and his otherwise unblemished employment record. This decision was overturned by the EAT which found that the Employment Tribunal had substituted its own view. On the facts, the EAT found that the decision to dismiss Mr Smith was “within the band of reasonable responses” open to an employer. As such, his dismissal was fair.

While seemingly encouraging for employers, this case should be treated with caution as generally speaking it is very unusual for an employer to be able to rely on an act of misconduct unless it is actioned straight away.