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Unfair dismissal for Facebook comments
An Employment Tribunal (ET) has held that the dismissal of an employee, for making derogatory
comments about her workplace on Facebook, was unfair. Whilst this decision is not binding on
other Employment Tribunals, it is interesting to see the approach being taken by Employment
Tribunals in the developing area of social media.
The Facts
The Claimant was employed by Club 24 Ltd (the Respondent) as a Team Leader providing
customer services for Skoda, part of the Volkswagen Group. Her colleagues included employees
of the Respondent and employees of Volkswagen/Skoda. She appeared to be an exemplary
employee.
A number of the Claimant's Facebook friends were colleagues. At home, the Claimant posted a
comment on her Facebook account (which was only visible to her friends) leading to the following
exchange: -
"I think I work in a nursery and I do not mean working with plants." (Claimant)
"Don't worry, takes a lot for the b******s to grind me down." (Claimant in response to an
email from a colleague).
"Ya, work with a lot of planks though!" (Ex-employee)
"2 true." (Claimant)
Investigation, Dismissal and Appeal
The exchange was reported to the Claimant's line manager, who was worried the comments
would impact upon the Respondent's relationship with Volkswagon.
After an investigation and disciplinary hearing, the Claimant was dismissed, with the Respondent
claiming that the posts contravened a policy covering confidentiality.
The Claimant appealed against her dismissal. The appeal hearer initially surmised that a warning
might have been more appropriate, as the remarks were "not too horrendous". There were
also mitigating factors, namely health and relationship issues, which had not been explored.
However, the appeal hearer ultimately confirmed the dismissal. The appeal hearer indicated that
she would have demoted the Claimant if there had been the contractual right to do so.
ET Decision
The ET decided the Claimant had been unfairly dismissed as dismissal for such an innocuous
comment fell outside the band of reasonable responses. The comments made no reference to
any client and were not likely to harm client relationships. Also, no weight was given to the
Claimant's previous exemplary record or personal circumstances.
Other failures on the part of the Respondent included: -
Not asking Volkswagen their view of the conduct - jeopardy to this client relationship being
the central reason for the dismissal.
Stating breach of confidentiality as the reason for the dismissal, however, failing to show
any breach of confidentiality and instead relying upon catch-all reasons for dismissal such
as "breach of any company or client rules and standards" and "bringing the company into
disrepute".
The Respondent could have attempted to agree a demotion with the Claimant as an
alternative.
The appeal hearer not being able to explain why her views on the severity of the
comments had changed.
Comment
This case highlights a few of the dangers that social media such as Facebook can have in the
workplace. If an employer becomes aware of derogatory comments posted by employees, it is
important not to react in a ‘knee-jerk’ fashion. If a comment is brought to the attention of an
employer, the matter should be investigated fully, the company’s policies and procedures should
be read and the severity assessed in accordance with those policies and procedures.
Employees tend to be very naïve when it comes to using social media and wrongly believe that if
something occurs outside of work, it will not impact on their employment. Employers should
ensure that they have a social media policy which sets out clearly to employees what their policy
is in relation to using social media at work (if this is permitted, for example as part of a marketing
strategy) and what the consequences are for employees when posting, blogging or tweeting both
at work and at home and how this might affect their relationship with their employer, i.e. it should
clearly state that bringing an employer into disrepute may lead to dismissal.
If you are interested in this developing area of employment law, the Employment Team will be
presenting a seminar on the Legal Implications of Social Media at the Cumbria Chamber of
Commerce Business to Business event on 6 October 2011 at the Castle Green Hotel, Kendal.
23 September 2011