An Employment Tribunal has held, in the case of Whitham v Club 24 Ltd t/a Ventura, that a dismissal of an employee who had posted derogatory comments about her workplace on Facebook was not reasonable in all the circumstances and so constituted an unfair dismissal.
Mrs Whitham was employed by Club 24 Ltd, which counted the Volkswagen group as one of its main clients. Her colleagues included both employees of Club 24 Ltd and employees of Volkwagen. Some of these colleagues were also friends with her on Facebook. Outside of working hours, she posted a comment on Facebook which read: "I think I work in a nursery and I do not mean working with plants." She then wrote, in response to an e-mail from a colleague: "Don't worry, takes a lot for the b&stards to grind me down." An ex-employee of Club 24 Ltd then wrote "Ya, work with a lot of planks though!", to which Mrs Whitham responded "2 true."
Mrs Whitham had around 50 Facebook friends at the time of the incident, who could view all messages she posted. General members of the public or Facebook subscribers who had not been accepted as a friend by Mrs Whitham could not see her comments. Two of her colleagues, who were friends with her on Facebook, saw the comments, and reported the incident to her line manager. Mrs Witham was subsequently dismissed, following a disciplinary procedure, the main reason for her dismissal being that her comments could have damaged the relationship between the respondent and Volkswagen, and had put the respondent's reputation at risk.
The Tribunal has found the dismissal to be unfair, as it fell outwith the band of resaonable responses, due to the relatively minor nature of the comments made. They were also critical of the procedure followed and in particular the respondent's failure to seek the views of Volkswagen on the conduct in question, given that damage to this relationship was the focus of the respondent's case. Further, the respondent had demonstrated a failure to understand its own disciplinary policy, and had failed to consider demotion as an alternative to dismissal.
Impact for employers
- Cases involving employees' use or misuse of social media are becoming increasingly common before Tribunals. Previous cases have seen such dismissals being held to be fair. However, this case illustrates to employers that there is clearly still a need to investigate matters thoroughly, and not to have a "knee-jerk" reaction to any negative comments, but instead to consider whether the comments are sufficiently serious/damaging to justify dismissal.
- The employer in this case also fell into error in categorising the misconduct as "breach of confidence" and "bringing the company into disrepute", which was not accepted by the Tribunal. In other cases, where dismissals have been found to be fair, employers have instead relied upon a breach of a company social media policy, highlighting the importance of having clearly defined policies, which explicitly state potential penalties for breach.