Delays will not always make a dismissal unfair

Delays will not always make a dismissal unfair


Author: Antonia Blackwell

Applies to: England, Wales and Scotland

Employers are well advised to act on allegations of gross misconduct as soon as they become aware of them to ensure the fairness of any subsequent dismissal.

However, a recent case has offered hope to employers who fail to take action straight away.

British Waterways Board v Smith

Case summary

Mr Smith worked for the British Waterways Board as a manual worker from 1 April 2005 to 4 June 2013. He was part of the team responsible for the maintenance and general upkeep of canals and reservoirs, working on a rota pattern which included him being on standby for one week in every five.

British Waterways had a rule that during the standby week employees were not permitted to consume alcohol. The disciplinary policy provided that British Waterways could dismiss employees for gross misconduct which included serious breaches of its policies. They also had a social media policy which prohibited 'any action on the internet which might embarrass or discredit British Waterways including defamation of third parties, for example, by posting comments on bulletin boards or chat rooms'.

During his employment, Mr Smith raised a number of grievances and in May 2013 a mediation was arranged to deal with those grievances. At the mediation, one of Mr Smith's managers disclosed incriminating comments that Mr Smith had made on his Facebook page back in 2011. In particular, Mr Smith had posted a comment relating to drinking alcohol whilst on standby. Mr Smith's manager had known about this since 2012 and had discussed it with HR at the time but no further action had been taken against Mr Smith.

As a result of the disclosure at the mediation, a subsequent search was carried out by HR which resulted in other comments being found on his Facebook page where Mr Smith had referred to supervisors in derogatory terms and to the fact he was drinking alcohol whilst on standby.

As a result, Mr Smith was suspended pending an investigation into the comments recovered from his Facebook account and was subsequently summarily dismissed for gross misconduct following a disciplinary hearing. This was despite the comments having been made, and the employer having been aware of them, 2 years previously.


Mr Smith brought a claim of unfair dismissal and at first the tribunal found that he had been unfairly dismissed. The tribunal felt that the decision to dismiss fell outside the band of reasonable responses which a reasonable employer might have adopted, on the basis that British Waterways had not taken into account mitigating factors, such as Mr Smith's clean service record and the amount of time which had passed since British Waterways had become aware of the comments. However, on appeal, the Employment Appeal Tribunal found that the dismissal was fair.

Key message

This case provides hope 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, although it is always prudent for employers to investigate potential acts of gross misconduct as soon as they are made aware of them.

This case also proves a useful reminder to employers of the importance of having a clear and effective social media policy in place.


This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the author

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Antonia Blackwell

Legal Director

0370 086 4087

Antonia is an employment lawyer with over 14 years experience providing commercially focused advice to businesses and employment advice for individuals on all aspects of employment law, both contentious and non-contentious, including proactively managing employment tribunal claims and providing pragmatic employment law advice, as well as advising on discrimination & equal pay, redundancy & reorganisation, executive appointment & exits, union related matters and TUPE advice.

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