In the recent case of Whitham v Club 24 T/A Ventura ET/18/0462/10 ("Whitham v Club 24"), the Employment Tribunal considered whether the dismissal of an employee who had made derogatory comments on Facebook was unfair.

Mrs Whitham was a junior employee of Club 24 Limited (the "Respondent"). She was employed as a team leader for Skoda (part of the Volkswagen Group).

Mrs Whitham posted a number of comments on to her Facebook account suggesting that she worked in a "nursery". These comments were reported to her line manager by two of Mrs Whitham's colleagues, who were also her Facebook friends.

The Respondent asserted that these comments could damage the company's reputation and harm its relationship with Volkswagen. Following disciplinary proceedings to address her conduct, Mrs Whitham was dismissed. Mrs Whitham appealed and, despite apologising for her actions and her previously exemplary record, the dismissal was upheld. Mrs Whitham brought a claim for unfair dismissal.

The Tribunal held that Mrs Whitham had been unfairly dismissed because the content of her Facebook posts was relatively innocuous and the employer did not have a policy concerning social media usage. Her Facebook profile was only viewable to her Facebook friends and was unlikely to harm the Respondent company's relationship with Volkswagen. The dismissal therefore fell outside of the band of reasonable responses.

The case highlights the importance of considering whether it is reasonable in all of the circumstances to dismiss an employee and of having an appropriate policy in place to cover the conduct in question. Employers should approach each situation with common sense. This case can be contrasted with Preece v JD Wetherspoons Plc ET2104806/10 ("Preece v JD Wetherspoons"), where the Tribunal held that the employee was fairly dismissed after making inappropriate comments on Facebook. The differentiating factor was that the employer had a clear email and internet policy which specifically referred to employees' use of social media sites such as Facebook. The handbook contained examples of gross misconduct and included acts committed away from work. The handbook made clear that disciplinary action would be taken if employees used their social networking accounts in a way that would lower the reputation of the organisation.

In light of these two cases it is clear that employers must carefully make provision for the use of social media in their staff handbooks. By having a clear policy on breaches of this kind, an employer will be able to limit the risk of leaving themselves open to accusations of unfair dismissal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.