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Employment Law Update – Andy Warhol, Facebook and You

Andy Warhol famously said "In the future everybody will be world famous for fifteen minutes.” The rise of celebrity culture and reality television in the Western world since then has shown Warhol to be quite prophetic. YouTube and webcams make it possible for you to be the star of your own show.

The problem is with all this goldfish living is that everyone sees and knows about what you think. (The wisest souls preserve a discreet silence). Social trends impact on work and employers are often left wondering what’s the best way to respond.

The important thing is to ensure an objective and proportionate response, not easy to achieve if you have been wounded by what an employee has shared with the world (or his part of it). Let’s take a lesson from a recent tribunal case.

Mrs Whitham was employed by Club 24 Ltd, which counted the Volkswagen group as one of its main clients. Her colleagues included both employees of Club 24 Ltd and employees of Volkswagen. Some of these colleagues were also friends with her on Facebook.

Outside of working hours, she posted a comment on Facebook which read: "I think I work in a nursery and I do not mean working with plants." She then wrote, in response to an e-mail from a colleague: "Don't worry, takes a lot for the b&stards to grind me down." An ex-employee of Club 24 Ltd then wrote "Ya, work with a lot of planks though!", to which Mrs Whitham responded "2 true."

Mrs Whitham had around 50 Facebook friends at the time of the incident, who could view all messages she posted. General members of the public or Facebook subscribers who had not been accepted as a friend by Mrs Whitham could not see her comments.

Two of her colleagues, who were friends with her on Facebook, saw the comments, and reported the incident to her line manager. Mrs Witham was subsequently dismissed, following a disciplinary procedure, the main reason for her dismissal being that her comments could have damaged the relationship between the respondent and Volkswagen, and had put the respondent's reputation at risk.

The Tribunal decided that the dismissal to be unfair, because of the relatively minor nature of the comments made. Further, it was critical of the procedure followed and in particular the respondent's failure to seek the views of Volkswagen on the conduct in question, given that damage to this relationship was the focus of the respondent's case. The employer should have considered demotion as an alternative to dismissal. Whitham v Club 24 Ltd t/a Ventura Would you consider trading without a phone?

Probably not. So why do companies leave the acquisition of essential advice and training for managers until they’re so far down the road that they’re staring down the barrel of an employment tribunal gun and the outcome is predictable. Club 24 lost money on this – around £10k for preparing and presenting the case and whatever they had to pay in compensation.

It’s a source of mystery to me that they didn’t get and stay up to date with the relevant employment law. It’s a much a tool of the business.

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