Posted: Tuesday 11 October 2011
More Facebook Employment Issues
I see that yet another case has been reported involving Facebook comments (see my previous blogs - Facebook sacking, Facebook Faux Pas, Further Facebook Problems). In Whitham v Club 24 Limited t/a Ventura, Mrs Whitham claimed she had been unfairly dismissed for posting comments on facebook.
Mrs Whitham was employed by Ventura as a “team leader” for Skoda, an important client. Employees of the client worked alongside Mrs Whitham.
Mrs Whitham has a facebook account, on which she has around 50 friends. Any posts she makes on the site are private, i.e. can be seen only by her friends. In September last year, Mrs Whitham had clearly had a difficult day at work and posted a comment reflecting her irritation:
“I think I work in a nursery and I do not mean working with plants”.
Following some relatively mild online conversation, someone else referred to her colleagues as “a lot of planks”. Mrs Whitham responded “2 true”.
The difficulty Mrs Whitham faced was that a number of her friends were also colleagues, including employees of Skoda. Two of her colleagues reported the comments and Mrs Whitham was ultimately dismissed. The employer felt that the comments could have a detrimental effect on its relationship with the client.
The Employment Tribunal took the view that Mrs Whitham had been unfairly dismissed, although her award was reduced by 20% in the circumstances. The employer’s decision to dismiss was not a reasonable response. The Tribunal pointed out that Mrs Whitham had an exemplary record and a good working relationship with her clients. Further, the language used on facebook did not specifically refer to any person, nor was there any evidence that the client (or indeed the employer) suffered any sort of loss or embarrassment. Finally, Mrs Whitham was suffering personal problems at the time.
This is an interesting decision and it shows that employers should not immediately rush to dismiss an employee, simply on the basis that a derogatory comment has been posted. You should consider all of the circumstances. In this particular case a warning or even a final written warning would have been appropriate rather than dismissal.
My previous blog - Social Networking Employment Law Guidance – provides a link to a useful guide on social networking and employment law published by ACAS.
