UK: Social Media And Unfair Dismissal

Last Updated: 15 November 2011
Article by Boyes Turner

Whitham v Club 24 Ltd t/a Ventura

The use of social media, or comments made on social media sites, being the basis for disciplinary procedures or the dismissal of an employee is becoming more commonplace. However another recent case where an employee reported her dissatisfaction with her work via Facebook, leading to her dismissal, highlights that not all such dismissals will be fair and employers must still look at the reasonableness of their actions.

FACTS

Mrs Whitham was employed by Club 24 for their client Skoda, which is part of the Volkswagen ("VW") group.

Mrs Whitham made a number of comments on her Facebook page following a tough day in the office including; "I think I work in a nursery and I do not mean working with plants", which prompted a number of responses from colleagues, echoing similar sentiments. However, two of Mrs Whitham's colleagues who were also Facebook "friends" reported her postings. Her boss thought the comments were unacceptable and in turn reported the comments to his manager at VW.

VW did not comment on the postings and nor were they asked to do so by Club 24. Nonetheless, Club 24 commenced disciplinary proceedings which resulted in Mrs Whitham's dismissal on the basis that the posted comments could damage the relationship between Club 24 and Volkswagen. It supported this dismissal with the fact that Mrs Whitham's Facebook page identified her as an employee of Skoda UK.

Mrs Whitham appealed the decision, however, despite the fact that the appeal officer did not regard the comments as "too horrendous" still found them to be "sufficiently serious as to amount to ...wilful misconduct" and upheld the dismissal.

Mrs Whitham brought a claim for unfair dismissal.

DECISION

The Employment Tribunal found that Mrs Whitham had been unfairly dismissed as the sanction of dismissal for a relatively mild comment on Facebook fell outside the band of reasonable responses. The Tribunal took into account the following;

  • The comments did not refer to a client
  • There was no evidence of any actual or likely harm to the relationship
  • Mrs Whitham had a previously exemplary record
  • She put forward mitigating factors to do with her health and personal circumstances.

The Tribunal also addressed a number of other factors.

1. Lack of Investigation

The employer had failed to seek the views of VW on the conduct in question and the Tribunal took the view that it would be highly unlikely that a number of relatively mild comments made by a relatively junior employee, which did not refer to VW, would give rise to termination of an important commercial agreement.

2. Breach of confidence

The Tribunal could not see how the conduct amounted to breach of confidence and that it was not enough to simply categorise it as "breach of any company or client rules or standards" or "bringing the company into disrepute"

3. Policies and procedures

The Company had not understood that its own policies and procedures allowed for demotion as an alternative to dismissal and both the dismissing and appeal officers had indicated that they felt this would have been a more appropriate sanction. Even if the policy hadn't allowed for this, it would have been possible for the employer to suggest demotion and for the employee to agree to this.

PRACTICE POINTS

This case shows that not every instance derogatory or damaging Facebook comments will justify a dismissal. Employers will need to make some attempt to assess the risk of harm, actual or likely, and factor this into their decision. A clear social media policy is the best option for notifying employees about what type on online behaviour is prohibited and will be regarded as misconduct.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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