Dismissing for comments on Facebook – is it fair?
The use - and perhaps misuse - of social media such as Facebook is becoming of increasing concern for employers, and many are introducing policies regarding their employees’ use of social media. However, even where employers have a policy regarding employee comments on social media sites, dismissal is likely to be unfair unless the employer can show actual or serious risk of potential harm to the business.
The recent case of Whitham v Club 24 Ltd shows the difficulties an employer faces in dismissing an employee for making derogatory comments about their workplace on Facebook.
- Ms Whitham was employed by Club 24 Limited (the “Company”). Some of Ms Whitham’s colleagues were employees of an important client of the Company.
- Ms Whitham made some derogatory comments about her workplace on Facebook such as "I think I work in a nursery and I do not mean working with plants" and agreeing with a comment suggesting she worked "with a lot of planks".
- Although these comments were not publicly visible, they were visible to Ms Whitham’s Facebook friends, which included a number of her colleagues.
- The Company felt the comments may have put their reputation at risk and damaged their relationship with the important client. In addition, it had a policy which warned employees that posting information about their job on the internet might constitute a breach of confidence and therefore Ms Whitham was dismissed for misconduct.
- Ms Whitham appealed against her dismissal but was unsuccessful, though the appeal manager commented that if she had a contractual right to do so, she would have preferred to sanction Ms Whitham with a demotion, rather than a dismissal.
The Employment Tribunal decided that Ms Whitham had been unfairly dismissed, as they felt dismissal for relatively mild comments on Facebook fell outside the band of reasonable responses open to an employer.
The factors the Employment Tribunal took into consideration in reaching this decision were:
- that Ms Whitham’s comments did not specifically refer to a client and that there was no evidence of any actual or likely harm to the Company’s relationship with its clients;
- although damaging the Company’s relationship with a client was a key part of the rationale for dismissing Ms Whitham, the Company had not conducted a reasonable investigation because it had not sought the client’s views on Ms Whitham's conduct;
- Ms Whitham’s exemplary employment record and mitigating factors concerning her health and personal circumstances had been ignored;
- the Company could have offered demotion as an alternative to dismissal even if its own policies did not provide for this, which in fact it turned out they did;
- the Company had taken a catch-all approach in terms of the allegations it put to Ms Whitham, which failed to identify her alleged misconduct with sufficient particularity.
However, although Ms Whitham did succeed with her claim, the Employment Tribunal did reduce her compensatory award by 20% for contributory fault.
The decision in the above case is a reminder that even though an employer may want to take action against employees for posting derogatory comments related to their employment on social media sites, it may not be enough to justify a dismissal. There must be evidence of actual, or a serious risk of potential, harm to the business. This is not to say that employees cannot be disciplined for such conduct but rather that the punishment should fit the crime and so the employer must think very carefully about whether dismissal is really appropriate.
Published: 2 Dec 2011