Some of you may have heard about Cella, a teenager in Texas who lost her job at Jet’s Pizza before even starting it. If you haven’t, here’s a quick reminder. The evening before what would have been Cella’s first day at Jet’s Pizza, she tweeted:
Perhaps Cella forgot that her tweet could be seen by all fellow twitterati and not just her followers. Unluckily for Cella, a member of staff at Jet’s Pizza did see the tweet and promptly took a screen shot and sent it to the pizzeria’s manager, Robert Waple. Mr Waple responded (via Twitter naturally):
Cella called the pizzeria to check if she needed to come into work, but the manager confirmed that she had been sacked before she had even started. Quite possibly, or to my knowledge at least, Cella could be the first person to be dismissed via Twitter. The case is a clear example of the perils of social media, but was Cella’s tweet a sackable offence?
An employer may wish to withdraw an offer of employment if it unexpectedly receives information about an applicant which casts doubt on the desirability of employing them (Cella’s tweet would no doubt fall into this category). However, this could leave the door open for the applicant in question to allege that the reason for withdrawing the offer was unlawful (for example, that the offer was withdrawn because of discriminatory reasons such as assumptions made about an applicant’s age, sex, sexual orientation, race etc). To avoid this, it is advisable for employers to document their reasons for withdrawing an offer and retain evidence that supports the reasoning behind its decision.
So what are the risks for employers if they withdraw job offers?
Certainly, if Cella was a UK employee she would not have the necessary length of service to bring an ordinary unfair dismissal claim – she has no length of service at all. But it is worth remembering that an employee does not need the same qualifying service to bring a claim for automatic unfair dismissal.
There could also be claims for breach of contract, but this will depend if the job offer has been accepted by the employee prior to it being withdrawn (an offer can, of course, be withdrawn at any point before it is accepted as a contract will only exist if an employee has accepted the offer in the first place). However, care must be taken to ensure that acceptance has not inadvertently taken place. As above, an employer should retain clear documentary evidence to demonstrate why the decision was made to withdraw the offer as well as when this decision was communicated to the applicant.
If the job offer had been withdrawn after the employee has accepted it, the position is more complex. Employment contracts are often subject to certain conditions, such as receipt of satisfactory references. If the conditions have been fulfilled and the employee has accepted the offer, a contract will exist. Unless summary termination is an option, the only way that an employer could lawfully terminate a contract in these circumstances is to give the employee the required period of notice under the contract. Failure to do so would risk a claim for breach of contract and the employee would be entitled to damages for the notice period that ought to have been served.
Probationary periods with shorter notice provisions should certainly assist, but care must be taken to ensure that the contract is terminated when it is most beneficial (and at the least cost) to the employer. This might at first glance seem obvious, but the case of cScape Strategic Internet Services Ltd v Toon UKEAT/0087/08 serves as a warning. Mr Toon was entitled to one month's notice under his contract, but "during or at the end of" his probationary period his contract could be terminated on one week’s notice. As with Cella, cScape terminated Mr Toon’s contract before he started work. The EAT held that Mr Toon had not been dismissed "during" his probation period and he was entitled to one month's notice.
We do not know what Cella’s contract says, or if she was dismissed in a probation period, but it is likely that Jet Pizza would seek to argue it was a case of summary dismissal. Mr Waple would have no doubt thought that Cella calling her employment a “F*** A** job” in such a public forum amounted to gross misconduct and was likely to bring Jet Pizza’s reputation into disrepute. As it stands, Cella’s case is another reminder of the power of social media and the wider implications of what can happen when a tweet goes viral.