A recent Employment Tribunal has ruled that Ms Whittam who was sacked by her company Ventura after criticising her workplace on Facebook was unfairly dismissed.

Whitham had posted a comment on the social networking site that said

"I think I work in a nursery and I do not mean working with plants".

She later commented, "Don't worry, takes a lot for the bastards to grind me down. LOL [laugh out loud]" in reply to a colleague.

Another colleague then replied: "Ya, work with a lot of planks though!!! LOL," to which Whitham responded "2 true xx".

The comments were reported to her employer by two of her colleagues with which she was also connected to on the site. As a result of this she was sent to a disciplinary hearing by the company and subsequently suspended then summarily dismissed for gross misconduct. She added this was despite having written an “extremely contrite and grovelling” letter of apology.

The tribunal ruled that Ventura were wrong to sack Whittam citing that the reasons for her dismissal were unreasonable.  Ventura claimed that Whittam’s comments placed the company’s reputation “at risk” and as a result could have potentially ruined its relationship with Volkswagen, one of their key clients.

In the summing up of the case the judge commented that "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,". In essence this had not been a good enough, or rather, proportionate reason for Whittam's dismissal. This was further highlighted when the judgement went on to say "We consider that Ventura unreasonably relied upon a view for which there was no proper evidence,".

In further recognition of Ventura's disciplinary policy the Tribunal stated that it 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.

Although Ventura believed they had the right to dismiss Whittam, they should not have done so without first considering alternative options, such as demotion, as stated under its disciplinary policy.  In reference to this error of judgement the Tribunal stated "We are quite unable to see how it can properly be argued that there is a contractual right to dismiss ... but no contractual right to demote within [the policy],". That is to say that if there was, on the facts, the evidence for one, here the dismissal, why would they have not been able to consider their other option of demotion as stated in their own procedures? It was for this failure to consider alternative options and the reaction to dismiss straight away that the Tribunal made its conclusion.

On the whole, Whittam had an exemplary disciplinary record, a good relationship with customers and there was no evidence that VW "suffered any embarrassment or that there was any likelihood of actual harm to the relationship between the two companies,” she immediately apologised for the comments and there were also “strong mitigating circumstances" surrounding events in her personal life.  "Applying all of those factors and weighing them in the balance against the relatively minor nature of the comments made ... the decision that she should be dismissed was outside the band of reasonable responses," the Tribunal ruled.

This case further highlights the need for am employer to pay full attention to the provisions of its disciplinary procedure and to ensure that all relevant steps are taken before a decision to dismiss. If, on the facts, the decision to dismiss is deemed to have been too rash then an employer may be found liable for their decision to dismiss, particularly, if no procedure was followed.

Whitham v Club 24 Ltd t/a Ventura