The People Bulletin

There have been a number of recent cases concerning employees and their use of Facebook to moan about work. However, the case of Whitham v Club 24 Ltd t/a Ventura has shown that negative comments about work by an employee does not instantly justify a dismissal.

The background

In this case Mrs Whitham worked for a company that provides customer services for Skoda, which is part of the Volkswagen group. Representatives of Skoda and Volkswagen worked at the company’s premises, and Mrs Whitham’s line manager, Mr Walsh, reported to a Volkswagen employee, Mr Hough. 

Until the events that resulted in her dismissal, Mrs Whitham had a clean disciplinary record. In September 2010, having apparently had a difficult day at work, Mrs Whitham posted some comments on Facebook bemoaning her colleagues, stating she felt like she worked in a nursery - no individuals were identified. A number of other comments were posted in response by colleagues.  Mrs Whitham’s privacy settings meant that only her friends on Facebook could see her messages, meaning that no other user or member of the public could see her updates.

The matter was brought to Mr Walsh’s attention.  He believed that they were "unacceptable", and spoke to Mr Hough. He told Mr Hough that he was going to conduct a disciplinary investigation. It is not clear if Mr Hough expressed any view on behalf of Volkswagen as to whether or not Mrs Whitham’s conduct had any adverse effect on the relationship between the two companies. 

Despite a grovelling apology Mrs Whitham was suspended and later dismissed for causing “extreme embarrassment” to the company and for putting the company’s relationship with Volkswagen at risk. A company policy stating that employees’ obligation of confidentiality extended to outside of the workplace and that included posting information on social media sites was cited.

Mrs Whitham appealed the decision, however the decision was upheld and she subsequently brought a case for unfair dismissal.

The tribunal

The Tribunal found that Mrs Whitham’s comments were relatively mild, were not about Volkswagen as such and did not involve any confidential information. Moreover, it was highly unlikely that such mild comments by a junior employee could jeopardise the commercial relationship between her company and Volkswagen and that the company’s failure to obtain any specific views on the incident from Mr Hough, on behalf of Volkswagen, was unreasonable.

Furthermore, the tribunal held that the company’s decision to dismiss Mrs Whitham was outside the band of reasonable responses open to a reasonable employer. There were also a number of mitigating circumstances including:

• she had an exemplary record;
• she had personal problems relating to her son’s death and her husband’s fidelity;
• her comments did not specifically refer to Volkswagen;
• there was no evidence of any embarrassment on the part of Volkswagen or likelihood of actual harm to its relationship with the company; and
• she had immediately apologised. 

The tribunal held that Mrs Whitham had been unfairly dismissed, and assessed her contributory fault at 20%.

www.clarkslegal.com

www.xperthr.co.uk

See also:'Trial by Facebook - the wider implications' in The People Bulletin, 16 June 2011

Picture credit: 1000 Words / Shutterstock.com