Whitman v Club 24 Limited t/a Ventura

Tuesday 29 November 2011

In a recent case the Leeds Employment Tribunal have considered a subject that has been of increasing concern to employers in recent years: alleged misuse of social media by employees.

Two caveats to this case are that: a) it very much turns on its very specific facts; and b) it is a first instance decision and so is not binding on any other courts (albeit that it is an interesting insight into the way the Tribunals are approaching these issues).

In brief, the case concerned an employee of Ventura who led a team that handled complaints on behalf of Skoda (a client of Ventura). In September 2010 this employee, having had a bad day at work, posted (from home and outside of work time) a number of messages on Facebook including:

“I think I work in a nursery and I do not mean working with plants”;

“Don’t worry, takes a lot for the ba****ds (full word used) to grind me down. LOL”; and (in response to a message from an ex-colleague which stated “Ya, work with a lot of planks though!!! LOL”)

“2 true xx”.

The employee was suspended, subjected to disciplinary proceedings and ultimately summarily dismissed – despite the fact that she had, until that point, had an entirely clean disciplinary record.

The main concern of the employer appeared to be the risk that its relationship with Skoda would be damaged. The employee claimed unfair dismissal.

In coming to its decision the Tribunal took into account the following factors:

a)      the fact that there was no evidence that the postings had damaged the relationship between Ventura and Skoda (or had even been seen by them) and that Ventura had not even attempted to find this out before dismissing the employee;

b)      the fact that the employee had a clean disciplinary record and, when the potential damage had been explained to her, she had written a “grovelling” letter of apology to her employer;

c)      the fact that Ventura’s Social Media Policy prohibited breaches of confidentiality through social media but not cases where the misuse of social media potentially damaged the reputation of the client (as it was arguably in this case);

d)      the fact that the appeal officer believed that demotion (rather than dismissal) would be the most appropriate course of action but felt that the company was not contractually entitled to demote the employee; and

e)      the fact that the comments posted by the employee were of a relatively mild nature.

This is unlikely to be the last case to consider whether dismissal for misuse of social media is fair, but there are certainly lessons that employers can draw from it: not least that if your employees do use social media (as most do these days) ensure that your Staff Handbook and policies and procedures adequately protect you against misuse of social media by employees (whether or not in work time and whether or not in breach of confidentiality).