In the recent case of The British Waterways Board v Smith, the Employment Appeal Tribunal found that Mr Smith was fairly dismissed because of comments he put on Facebook.

Mr Smith brought a number of grievances to his employer. During the grievance investigation process, Mr Smith’s manager provided details of comments which were posted by Mr Smith on his personal Facebook account, some two years earlier. The comments were not linked or related to Mr Smith’s grievances but contained various expletives, were derogatory towards the employer and also indicated that Mr Smith had been drinking alcohol during one week of a rota system when he was required to abstain.

The employer knew about the comments already but nevertheless, suspended Mr Smith and ultimately dismissed him for gross misconduct.

The Employment Appeal Tribunal held that the dismissal was fair even though the comments were two years old and the employer had known about them previously. The employer was not criticised for effectively going on a ‘fishing expedition’ to find evidence against the employee, nor was the employer criticised for the delay in raising the allegations of misconduct with the employee.

Similarly, the employee was not able to avoid a charge of gross misconduct by arguing that the comments were ‘banter’ and untrue. The employer had carried out a reasonable investigation into the comments and its response had been a reasonable one. The Employment Tribunal was not entitled to substitute that decision by concluding that no actual damage had been done by the employee.

Although the Employment Appeal Tribunal declined to lay down specific guidance for employers, the case serves as a useful reminder for employees that their Facebook account is not a private sounding board for their concerns at work. It also highlights the benefits of having an effective and up to date social media policy which outlines acceptable online behaviour, both in and out of the workplace. Without a social media policy, employers may find it difficult to regulate their employee's online actions and may struggle to discipline and/or dismiss employees for unacceptable social media behaviour.

If you would like more information about how a social media policy will benefit and protect your business or if you would like your current social media policy updated, please contact us.