Employment e-Brief – Social media related dismissals

On the increasingly common issue of social media related dismissals, there has been a recent Tribunal decision in the case of Whitham v Club 24 Ltd t/a Ventura ER/1810462/10.

The Facts

Mrs Whitham was employed by Ventura as a Team Leader for Skoda Customer Services (a client of Ventura).

Mrs Whitham had a Facebook account and had 50 friends who could see her Facebook postings. Her profile indicated that she was an employee of Skoda UK (which was not actually correct). After an apparent difficult day at work, Mrs Whitham, in her own time outside work, posted a comment on her Facebook page saying “I think I work in a nursery and I do not mean working with plants“. A number of her Facebook friends (both current and ex-colleagues from her team) replied with comments such as “Don’t worry, takes a lot for the b*stards to grind me down. LOL.” and “Ya, work with a lot of planks though!!! LOL.” Mrs Whitham then responded with “2 true“. These comments were seen by two of Ventura’s managers, both of whom were Facebook friends of Mrs Whitham.

Mrs Whitham was suspended by Ventura and invited to attend a disciplinary hearing at which she was dismissed. The dismissing manager thought that Mrs Whitham’s comments had brought extreme embarrassment to Ventura, put its reputation at risk and could have been detrimental to its relationship with its client Volkswagen (“VW”) (Skoda being part of the VW Group). The dismissal was upheld at appeal.

Mrs Whitham brought an unfair dismissal claim. No action was taken in relation to any other employees who had responded to Mrs Whitham’s comment.

The Decision

The Tribunal held that Mrs Whitham’s dismissal was unfair. The following were key considerations:

• Importantly, there was no evidence of any pressure from VW in respect of the postings, nor was there any evidence that the postings were detrimental to the relationship with VW. The Tribunal stated in its judgement that “it would seem to us to be a very strange world if a company the size of Volkswagen, working with a company the size of the Respondent, would terminate an important commercial agreement of that sport because of a number of relatively mild comments made by a relatively junior employee of the Respondent and which did not, in any manner, directly refer to VW in any event.“
• The appeal manager indicated that had she had the contractual right to demote Mrs Whitham she would have done but as she did not, the only option was to uphold the decision. The Tribunal concluded that Mrs Whitham did in fact have the right to demote and was mistaken in the belief that she did not.
• Dismissal was outside the band of reasonable responses. There were strong mitigating factors, such as Mrs Whitham having an almost exemplary record; she had a good working relationship with Skoda, she had personal problems at the time relating to the anniversary of her son’s death, the fidelity of her husband and she was taking anti-depressants. In addition, when Mrs Whitham was spoken to about her comments, she immediately apologised, both verbally and in writing.
• The Tribunal had concerns over the level of investigation that Ventura had undertaken.

The Tribunal did accept Ventura’s explanation as to why it decided not to take any action against the other employees who had responded to Mrs Whitham’s comments. The explanation given was due to a.) their respective seniority, b.) their different roles and c.) that Mrs Whitham had initiated the discussion on Facebook. The Tribunal accepted that Ventura was entitled to draw these distinctions.

Key Points

This case serves as a reminder that when considering whether to dismiss someone for making postings on social media sites which allegedly damage the company’s reputation, you should bear in mind:

• the severity of the comments;
• whether there has actually been any damage to reputation, including investigating and considering the number of people who were likely to have seen the comments and their impact on the relationship with any third party; and
• whether there are any mitigating factors.

If you have any questions or would like assistance with drafting a Social Media Usage Policy, then feel free to contact Bryony Goldspink at bryony.goldspink@gordonsllp.com or on 0113 227 0307 or any other member of the employment team.