Avid followers of our employment law e-bulletin will well remember the barmaid who, in a moment of folly, decided to vent her feelings about some Wetherspoon's regulars on Facebook ( case report on JD Wetherspoon PLC v Miss K C Preece in April 11). As no doubt many of you suspect, cases involving social media are on the up and Whitham v Club 24 Ltd t/a Ventura is another one involving postings on Facebook and dismissal. However, this time the dismissal was found to be unfair.
Mrs Whitham was employed by Club 24 Ltd as a Team Leader for their client Skoda which is part of the Volkswagen group meaning that it is no longer the source of jokes such as: ''Why do skodas have heated rear windscreens? To keep your hands warm whilst pushing them''. After a particularly trying day at the office Whitham commented on her Facebook page "I think I work in a nursery and I do not mean working with plants". A colleague responded to this post which prompted Whitham to reply "Don't worry, takes a lot for the bastards to grind me down. LOL" An ex-employee then commented "Ya, work with a lot of planks though!!! LOL", to which Whitham replied "2 true xx". All the "Laughing Out Loud" was short lived as two of Whitham's colleagues were Facebook "friends" and reported her postings to her boss. He thought the comments were unacceptable and reported them to his boss, an employee of Volkswagen. Crucially, no one from Club 24 asked what he thought of the comments.
Club 24 commenced disciplinary proceedings and Whitham was dismissed, mainly because they felt the comments could have damaged the relationship between Club 24 and Volkswagen. The justification for this was that the Facebook profile from which Whitham wrote her comments stated that she was an employee of Skoda UK, which, while not strictly true, could suggest that the employees of Skoda UK are at best, young, and at worst, infantile.
Whitham appealed and the manager dealing with the appeal whilst initially taking the view that the comments were "not too horrendous", within a week had concluded they were "sufficiently serious as to amount to ... wilful misconduct". Demotion as an alternative to dismissal was brought up and rejected on the grounds that her contract did not allow for this. In fact it did, and Whitham would have accepted a demotion. Whitham also had an exemplary record at work and the appeal manager's investigations also revealed a number of strong mitigating circumstances in Whitham's personal life. Nevertheless, the appeal was rejected.
The Tribunal decided that she had been unfairly dismissed since sacking her for what they felt was a relatively mild comment on Facebook fell outside the band of reasonable responses. They noted that the comments on Facebook did not specifically refer to a client nor was there any evidence of any actual or likely harm to the relationship. This was a major error by Club 24 as, in all it's investigating, it had failed to seek the view of Skoda/Volkswagen on her conduct in order to demonstrate that the relationship between them had actually been harmed.
This case differs from the Wetherspoon's case in a number of ways. The employee in that case posted comments whilst actually at work whereas Whitham did so outside work hours. The Wetherspoon's employee also named her customers when expressing her views on them. Whitham, by contrast, did not name anyone. Wetherspoon's had a clear and detailed social media policy which expressly referred to the use of social media whilst at work and stated that disciplinary action could be taken if comments on sites such as Facebook "lower the reputation of the organisation, staff or customers..." and that failure to comply with the social media policy could amount to gross misconduct. Conversely, in the case of Mrs Whitham there did not appear to be a policy and they overlooked parts of her contract, such as whether they could demote her. In short, if you haven't developed your social media policy yet then you had better get your skates on as these issues are going to keep on coming up.
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