Do you have a social media policy for employees? Employee use of social media is on the increase and so too are the number of cases going to employment tribunals on this area! The Employment Appeal Tribunal (EAT) has held in a recent judgement that it was fair for an employer to dismiss an employee that made derogatory comments about his employer on Facebook.

In the recent case of British Waterways Board v Smith, the EAT considered whether it was fair to dismiss an employee that made derogatory statements about their employer on Facebook when the employer had been made aware of the misconduct 12 months before the dismissal.

Employees with more than 2 years' service have the right not to be unfairly dismissed. Where the dismissal reason is conduct, an employer must establish that at the time of dismissal it believed the employee to be guilty of the misconduct, that it had reasonable grounds for doing so and that it had carried out a reasonable investigation.

Mr Smith worked for BW as a manual worker and, as part of the rota pattern, was required to work one week in five on standby. During the week where he worked on standby, he was not permitted to drink alcohol.

As part of their disciplinary policy, BW could dismiss employees for gross misconduct for serious breach of its policies, including their social media policy. The social media policy stated that it was prohibited for employees to carry out "any action on the internet which might embarrass or discredit BW (including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms)."

During a mediation arranged by BW as a result of a series of grievances raised by Smith, BW produced information relating to derogatory comments and evidence of him consuming alcohol whilst on standby including:

• 'Going to be a long day, I hate my work'
• 'On standby tonight so only going to get half p***ed'
• 'Im on vodka and apple juice first time I've tried it, not too shabby'

At the mediation, Smith was suspended pending an investigation and was eventually summarily dismissed for gross misconduct. The employment tribunal found that the employee had been unfairly dismissed, although this decision was overturned by the EAT.

This case shows that an employer who has failed to respond to an employee's earlier act of misconduct will not necessarily lose the opportunity to take action at a later date. Furthermore, and perhaps more importantly, it is a useful reminder to employers of the importance of maintaining an effective social media policy, as well as employees being careful of what they post online.