The EAT has held that it was fair of the British Waterways Board to dismiss their employee, Mr Smith, because of comments he had made on Facebook 2 years previously. This was even though the Waterways Board had known about the comments all along, and they had come to light in a separate context.
Mr Smith and his team were responsible for the upkeep of various canals. He had, in the past, made a number of comments on Facebook which were derogatory of the company and employees, using various combinations of insult and foul language. The posts also indicated that he had been drinking alcohol whilst on standby.
Although these comments were made between 2005 and 2013, and the Waterways Board was apparently aware of them, nothing was done about them. That was, until Mr Smith raised a number of grievances. The person he was raising a grievance against raised the subject of the Facebook remarks in response to the grievance.
It was only at this point that the Waterways Board decided to dismiss Mr Smith for the posts. The EAT agreed with the Waterways Board that doing so was fair.
We have previously reported on the case of Williams v. Leeds United Football Club, where the employee was allowed to search for evidence of gross misconduct against the employee in order to get around the long notice period. They were allowed, in that case, to rely on evidence that was more than 5 years old.
This case adds weight to the ability of an employer to dig around for what might be seen as old evidence against employees and using it against them without criticism by the Tribunal.