When can you fairly dismiss an employee for derogatory comments on social media sites?
This has been a very topical issue for employers since the flourish of social media sites and services such as Facebook and Twitter.
In April 2011, in the case of Preece v JD Wetherspoons plc, the Employment Tribunal decided that an employee had been fairly dismissed for derogatory comments placed on Facebook. What was important in this case was that the employer had a clearly drafted policy which spelt out that disciplinary action was likely to be taken if derogatory comments were made about the organisation in blogs or on social media sites.
In the case of Whitham v Club 24 Limited t/a Ventura, the Employment Tribunal had to consider this issue again.
Mrs Whitham was employed by Club 24 and was promoted to team leader within two years and considered to be an exemplary employee.
Whilst working from home one day, Mrs Whitham posted a number of generic derogatory comments about her colleagues, comparing them to children. Her Facebook pages were not visible to the public, but were visible to her Facebook friends, some of whom were her colleagues. Her colleagues included the employer’s employees and employees of Volkswagen and Skoda.
Two of Mrs Whitham’s colleagues reported her comments to her Line Manager. The Line Manager considered that the comments could damage the Company’s relationship with Volkswagen. Mrs Whitham was suspended and, following a full disciplinary process, was dismissed for misconduct, despite having sent a letter of apology.
Mrs Whitham appealed against her dismissal and the Appeal Officer initially considered that a warning might have been more appropriate as the comments left on Facebook were “not too horrendous”. There were also some health and relationship issues which were not taken into account and which may have served as mitigation for the employee’s conduct. Notwithstanding this, the Appeal Officer decided to dismiss the appeal. In doing so, the Appeal Officer indicated that had there been a right to demote the employee within the disciplinary policy, this would have been more appropriate, However, as there was no such right, dismissal was a suitable alternative.
The Tribunal concluded that the dismissal was unfair. It considered that dismissing an employee for relatively mild comments on Facebook was unreasonable. The Tribunal took into account the fact that the comments did not specifically refer to a client and nor was there any evidence that the comments would damage the relationship with any clients. In reaching this decision, the Tribunal considered that the investigation was inadequate as the Company had not contacted Volkswagen to seek their view on the conduct.
The Tribunal also considered that it was not reasonable to conclude that simply because a disciplinary policy did not give an express right to demote an employee, this option should not have been considered as an alternative to dismissal. It also took into account the fact that the Appeal Officer had originally considered that dismissal was not reasonable and could not provide an explanation for the change in her position.
The Tribunal also said that it was unreasonable to ignore Mrs Whitham’s previous exemplary record and the mitigating health and relationship factors.
Finally, the Tribunal concluded that the dismissal was unfair. However, it reduced Mrs Whitham’s compensation by 20% for contributory fault.
From an employee’s point of view, this case highlights the risks in having colleagues as Facebook friends. Mrs Whitham was sensible by restricting access to her pages to only her friends, but this did not protect her when colleagues were her friends.
From an employer’s point of view, it emphasises the need to have a well drafted social media policy which can be relied upon. In this case, the employer was left to rely on the “catch all” of a breach of any company or client rules and standards or “bringing the company into disrepute”.
Employers should not assume that it is sufficient to assert that comments or misconduct could damage a client relationship. The Tribunal emphasised in this case that employers should make some attempt to assess the potential damage.
Finally, the case emphasises that where there is an alternative to dismissal, which is considered reasonable, such as demotion, it is likely that a resulting dismissal will be unfair. To assist managers, it is helpful, although not essential, to list this option in the disciplinary policy.