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UK firm unfairly dismissed employee for Facebook comments, Tribunal rules

Out-Law News | 26 Sep 2011 | 10:15 am | 3 min. read

A worker who was sacked after criticising her workplace on Facebook was unfairly dismissed, an Employment Tribunal has ruled.

EA Whitham was dismissed by her company, Ventura, after she posted comments about her workplace last September.

Whitham posted: "I think I work in a nursery and I do not mean working with plants". Following a reply by one of her colleagues Whitham further commented: "Don't worry, takes a lot for the bastards to grind me down. LOL [laugh out loud]". Another colleague responded: "Ya, work with a lot of planks though!!! LOL," to which Whitham replied: "2 true xx", the ruling said.

Two of Whitham's colleagues, who were also her Facebook 'friends', reported the comments to Whitham's line manager. The company conducted a disciplinary hearing and went on to suspend Whitham before later summarily dismissing her for gross misconduct, despite Whitham writing an "extremely contrite" and "grovelling" letter of apology for her comments, the ruling said.

Ventura was wrong to sack Whitham because the reasons given for her dismissal were not reasonable, the Tribunal ruled. The company had claimed that Whitham's comments had put the firm's reputation "at risk" and had the potential to ruin its relationship with a key client, Volkswagen, it said.

"While we cannot rule out the possibility, it would seem to us that it would be a very strange world in which a company the size of Volkswagen (VW), working with a company the size of [Ventura], would terminate an important commercial agreement ... because of a number of relatively mild comments made by a relatively junior employee of [Ventura] and which do not, in any manner, directly refer to VW in any event," the ruling (16-page / 710KB PDF) said.

"We consider that [Ventura] unreasonably relied upon a view for which there was no proper evidence," it said.

Under the Employment Rights Act an employer can successfully defend against claims of unfair dismissal if they show that, "in the circumstances", the reasons for dismissal involved the conduct of the employee and that it "acted reasonably ... in treating [the employee's conduct] as a sufficient reason for dismissing the employee".

Ventura had also claimed that Whitham had breached parts of the firms' disciplinary policy, but the Tribunal ruled that the company had "entirely failed properly to understand its own disciplinary procedures, rules and policy" after claiming it could pick-and-choose areas of the policy to act upon, the ruling said.

The company said it had the right to dismiss Whitham for breach of confidence, but could not consider alternative sanctions, including demotion, under the terms of the firm's disciplinary policy.

"We are quite unable to see how it can properly be argued that there is a contractual right to dismiss ... but no contractual right to demote within [the policy]," the Tribunal said in its ruling.

The Tribunal said that, even discounting the unreasonable reasons Ventura had claimed to justify dismissing Whitham, it was still "outside the band of reasonable responses" for the company to sack her.

Whitham had an "exemplary [disciplinary] record" and had built good customer relations, there was no evidence that Volkswagen "suffered any embarrassment or that there was any likelihood of actual harm to the relationship between the two companies," and she had "immediately apologised" for her behaviour, the Tribunal said. There were also "strong mitigating circumstances" surrounding events in her personal life, it said.

"Applying all of those factors and weighing them in the balance against the relatively minor nature of the comments made ... the decision that [Whitham] should be dismissed was outside the band of reasonable responses," the Tribunal ruled.

"There can be no doubt that [Ventura] acted unreasonably ... and that [Whitham] was accordingly unfairly dismissed," it said.

Employment law expert Morag Hutchison of Pinsent Masons, the law firm behind Out-Law.com, said the case proved that businesses had to consider a wide variety of factors when dismissing staff and that they should develop strong policies on using social networks.

"In reaching its decision the Tribunal took into account the relatively minor nature of the comment made (the employer themselves initially categorised it as 'not too horrendous'), the fact that the employee had a clean disciplinary record and a good relationship with her customers, various factors that were going on in the employee’s personal life, the fact that the comment did not specifically refer to her employer and that fact that she apologised for her actions," Hutchison said.

"The Tribunal found that Ventura ‘entirely failed properly to understand its own disciplinary procedures, rules and policy’ which only emphasises the need for businesses to develop coherent standards setting out what employees can and cannot do in relation to using social networks," she said.

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