Social Media And Unfair Dismissal

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...