Unfairly dismissed for Facebook comments (Whitham v Club 24 Ltd. t/a Ventura)

A recent case in the Employment Tribunal highlights the problems that Facebook usage can cause for both employees and employers.

In Whitham v Club 24 Ltd. t/a Ventura the Claimant (Ms Whitwam) worked for Club 24 Ltd as a team leader. Club 24 Limited provided customer services for Skoda, part of the Volkswagen Group. This was an important contract for Club 24 Limited. The workforce at the Claimant’s workplace consisted of both Volkswagen Group and Club 24 Limited employees. The Claimant had previously had a clean disciplinary record at Club 24 Ltd.

On 14 September 2010 the Claimant (after an apparently “difficult day at work”) the Claimant posted on her Facebook account “I think I work in a nursery and I do not mean working with plants”. One of the Claimant’s former colleagues then posted a message on the Claimant’s ‘profile’ suggesting that the Claimant worked with “a lot of planks”. The Claimant replied “2 [sic] true”. At this time the Claimant had only approximately 50 friends on Facebook and had set her privacy settings so that those who were not her “friends” on Facebook could not see her messages.

The Claimant’s line manager was subsequently informed of the messages. He believed that the messages were “unacceptable” and proceeded to commence a disciplinary investigation. The Claimant was subsequently summarily dismissed for potentially harming the Respondent’s relationship with Volkswagen and for a breach of confidentiality (relating to her suspension).

The Tribunal found that the Claimant’s dismissal was unfair. The Claimant wasn’t complaining about Volkswagen but about her working conditions and the people that she was working with. It also considered that such “mild comments” that the Claimant had made would not have in reality resulted in Volkswagen terminating its contract with the Respondent. There was no evidence of any pressure from Volkswagen and it was found that the Respondent’s failure to obtain the views of a manager at Volkswagen was unreasonable. Further, the Respondent had failed to reasonably consider alternative sanctions such as demotion and failed to put that option to the Claimant. They further found that the Claimant would have accepted that alternative should it have been put to her. The Claimant also had strong professional and personal mitigating circumstances. The Tribunal therefore found that the dismissal was outside the range of reasonable responses. However the Claimant was deemed to be 20% at fault.

This case emphasises a number of points for both employers and employees:

Employees

• Be careful of what you post on Facebook (obviously!)

Employers

• Employ a social media policy. This is essential.
• Ensure that your employees are aware of the existence of and terms of the social media policy.
• Ensure that your employees are aware of the terms of your confidentiality policies
• Ensure that you conduct your investigatory and disciplinary policy fairly
• Take into account the views and mitigating circumstances of any employee in relation to any allegations