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Dismissal for Comments on Facebook Unfair

12 March 2012

A recent case (Whitham v Club 24 Ltd. t/a Ventura) sheds further light on how an employer should respond if an employee makes derogatory remarks concerning the workplace on a social networking site.

Mrs Whitham worked as a team leader at Club 24 Ltd., which provides customer services for the Volkswagen group. The workforce comprises employees of Club 24 and of Volkswagen.

After a hard day at work, Mrs Whitham posted as her status on Facebook, “I think I work in a nursery and I do not mean working with plants.” Then, in response to a post from a colleague, put, “Don’t worry, takes a lot for the bastards to grind me down.” A former employee of Club 24 then wrote, “Ya, work with a lot of planks though,” to which Mrs Whitham replied, “2 true.” At the time, she had around 50 Facebook friends and only they would have been able to view her comments.

When her line manager found out about the comments, from two of her Facebook ‘friends’ who were also work colleagues, he commenced disciplinary proceedings and Mrs Whitham was subsequently dismissed. The company’s main reason for doing so was the fact that her comments had put its reputation at risk and could have harmed its relationship with Volkswagen.

The Employment Tribunal (ET) ruled the dismissal unfair. It judged the comments to be relatively mild and held that dismissing the employee fell outside the band of reasonable responses open to the employer in the circumstances. No mention had been made by Mrs Whitham of Volkswagen, nor was any evidence produced to show that Club 24’s relationship with its important client had been harmed in any way. The ET also criticised the employer for failing to consider demotion of Mrs Whitham as an alternative to dismissal.

A company social media policy is a must. Employees must be in no doubt as to the terms of the policy and the punishment that will ensue in the event of a breach. Make it clear what will be regarded as a breach of confidentiality and give clear examples of behaviour that will be regarded as gross misconduct. If an employee has infringed the policy, do not act too hastily. Investigate thoroughly and weigh up the possible consequences of the employee’s actions. Were they just feeling fed up and merely letting off steam, as the ET found was the case here, or do the comments cause actual damage to the reputation of your business?

We can assist you in drawing up a social media policy tailored to the needs of your business.

For more information on this subject or any other legal matter, please contact us:

Tonbridge: 01732 770660
Sevenoaks: 01732 747900
Email: [email protected]