Monitoring and regulating Facebook usage by employees can be difficult. What can you do about inappropriate comments made by an employee about their employer? This issue was recently considered by the Employment Tribunal in Whitham -v- Club 24 Ltd t/a Ventura.
Ms Whitham was employed by Ventura, a customer management outsourcing company, as a Team Leader working for Skoda, part of the Volkswagen Group.
In September 2010, following a difficult day at work, Ms Whitham made a number of comments on her Facebook page. Her first comment said: “I think I work in a nursery and I do not mean working with plants”. In response to a comment made by one of her colleagues, Angela Flynn, Ms Whitham said: “Don’t worry, takes a lot for the bastards to grind me down”. A former Ventura employee, Liz Graham, commented: “Ya, work with a lot of planks though!!! LOL”, to which Ms Whitham replied: “2 true xxx”. These comments were visible to her 50 Facebook friends, who included some of her colleagues from both Ventura and Volkswagen.
Her comments were reported to Ventura’s management and a disciplinary procedure was commenced. Ventura alleged that Ms Whitham’s comments were in breach of confidence and it was concerned that they could bring the company into disrepute and could damage the relationship with Volkswagen.
Ms Whitham was dismissed for gross misconduct. She appealed. Ms Davies, who heard the appeal, initially considered that the comments were not “too horrendous” and felt that a warning may have been more appropriate. She noted that she would have considered demoting Ms Whitham had she had the contractual power to do so. However, she subsequently upheld the decision to dismiss.
Ms Whitham’s claim for unfair dismissal against Venture was successful. The Employment Tribunal found that the decision to dismiss fell outside of the range of reasonable responses. It was not satisfied that Ms Davies had shown why her opinion on the severity of the comments had changed from “not too horrendous” to being serious enough to warrant dismissal during the appeal process. It found that Ventura had not carried out sufficient investigation into whether the comments had, in fact, brought the company into disrepute or damaged the relationship with Volkswagen. There was no basis on which the company could call the comments a breach of confidence and it had failed to taken into account that its own disciplinary policy provided a power to demote.
The message from this case is that it is important for an employer to carry out a thorough investigation, not only into the incident but into the impact of any comments made on Facebook, including any risk to your reputation. You may wish to consider introducing a Social Media Policy which provides clear guidelines as to what you consider to be appropriate use of websites such as Facebook, Twitter and LinkedIn.
