Ventura unfairly dismissed employee for Facebook comments

An increasing number of tribunal cases involve employees making work-related comments on Facebook. This case shows that derogatory comments will by no means always justify dismissal.

Mrs Whitham was dismissed by Ventura after posting comments on Facebook which criticised her workplace last September.

Until the events that resulted in her dismissal, Mrs Whitham had a clean disciplinary record. On 14 September 2010, having apparently had a difficult day at work, she posted on her Facebook account: “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 “. Another colleague responded: “Ya, work with a lot of planks though!!! LOL,” to which Whitham replied: “2 true xx”.

Mrs Whitham had arranged her privacy settings so that only they, and no other user or member of the public, could see her status updates. Two of her colleagues, who were also her Facebook ‘friends’, reported the comments to her line manager. Ventura suspended Mrs Whitham whilst the conducted an investigation, and despite Whitham writing an “extremely contrite” and “grovelling” letter of apology for her comments she was summarily dismissed for gross misconduct.

The Tribunal ruled that Ventura were wrong to sack Whitham because the reasons given for her dismissal were not reasonable. The company had claimed that Mrs 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 said.

Ventura had also claimed that Mrs 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 Mrs Whitham for breach of confidence, but could not consider alternative sanctions, including demotion, under the terms of the firm’s disciplinary policy.

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

The Tribunal ruled that after applying all of those factors and weighing them in the balance against the relatively minor nature of the comments made the decision that Mrs Whitham should be dismissed was outside the band of reasonable responses. There can be no doubt that Ventura acted unreasonably and that Mrs Whitham was accordingly unfairly dismissed.

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