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In the recent case of Whitham v Club 24 T/A Ventura
ET/18/0462/10, the Employment Tribunal considered whether the
dismissal of an employee who had made derogatory comments on
Facebook was unfair.
Mrs Whitham was a junior employee of Club 24 Limited (the
"Respondent"). She was employed as a team leader for
Skoda (part of the Volkswagen Group).
Mrs Whitham posted a number of comments on to her Facebook
account suggesting that she worked in a "nursery". These
comments were reported to her line manager by two of Mrs
Whitham's colleagues, who were also her Facebook friends.
The Respondent asserted that these comments could damage the
company's reputation and harm its relationship with Volkswagen.
Following disciplinary proceedings to address her conduct, Mrs
Whitham was dismissed. Mrs Whitham appealed and, despite
apologising for her actions and her previously exemplary record,
the dismissal was upheld. Mrs Whitham brought a claim for unfair
dismissal.
The decision
The Tribunal held that Mrs Whitham had been unfairly dismissed
because the content of her Facebook posts was relatively innocuous
and the employer did not have a policy concerning social media
usage. Her Facebook profile was only viewable to her Facebook
friends and was unlikely to harm the Respondent company's
relationship with Volkswagen. The dismissal therefore fell outside
of the band of reasonable responses.
The case highlights the importance of considering whether it is
reasonable in all of the circumstances to dismiss an employee and
of having an appropriate policy in place to cover the conduct in
question. Employers should approach each situation with common
sense.
A clear policy
This case can be contrasted with Preece v JD Wetherspoons
Plc ET2104806/10, where the Tribunal held that the employee
was fairly dismissed after making inappropriate comments on
Facebook. The differentiating factor was that the employer had a
clear email and Internet policy which specifically referred to
employees' use of social media sites such as Facebook. The
handbook contained examples of gross misconduct and included acts
committed away from work. The handbook made clear that disciplinary
action would be taken if employees used their social networking
accounts in a way that would lower the reputation of the
organisation.
In light of these two cases it is clear that employers must
carefully make provision for the use of social media in their staff
handbooks. By having a clear policy on breaches of this kind, an
employer will be able to limit the risk of leaving themselves open
to accusations of unfair dismissal.
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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