Social media: Dismissal for offensive non-work related tweets potentially fair

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Social media: Dismissal for offensive non-work related tweets potentially fair

Published On: 6 January 2015

In this case the EAT considered whether a tribunal had mistakenly held that an employer's decision to summarily dismiss an employee for posting offensive, non-work related messages on his personal Twitter account was unfair.

Facts

Game Retail Ltd (Game) is a games retailer with over 300 stores across the UK. Its stores rely on Twitter and other social media tools for marketing and communications. Each store has its own Twitter profile and feed, to which each store's manager, and deputy manager, have access for posts. A large number of customers follow their local stores on Twitter, and their posts can therefore appear on the store Twitter feed.

Mr Laws, the Claimant, was employed by Game as a risk and loss prevention investigator with responsibility for approximately 100 stores. Some time prior to July 2012, Mr Laws opened his own Twitter account and began to follow the Twitter accounts of those stores for work purposes, mainly to monitor their tweets for any inappropriate activity by other employees. He only created one account, rather than creating one for work and one for social purposes, and he did not make use of the restriction setting on his Twitter account, which would have restricted his tweets to social acquaintances. His account did not specifically associate him with Game. He allowed 65 stores to follow him, after one local manager tweeted an encouragement for stores to do so.

In July 2013, a manager raised concerns with Game about allegedly offensive and abusive tweets that Mr Laws had posted. Game conducted an investigation. The investigating manager identified 28 offensive tweets, which were described by the disciplining officer as "intimidating, racist and anti-disability" and which contained expletive and obscene language. Mr Laws was summarily dismissed for gross misconduct, and his subsequent appeal was dismissed. He brought a claim for unfair dismissal.

An employment tribunal upheld Mr Laws' unfair dismissal claim. The main question for the tribunal was whether the decision to dismiss for gross misconduct fell within the band of reasonable responses. The tribunal had concluded that it did not because: the tweets were posted for private use and Mr Laws' tweets did not associate him with Game, and Game's disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.

Game appealed to the EAT who allowed the appeal. The EAT held that Mr Laws' tweets could not properly be considered private. The tribunal had failed to engage with Game's concern that the offensive tweets were going out to the stores following Mr Laws. The tribunal had failed to develop its finding that managers would have access to Mr Laws' tweets. The EAT found that a reasonable tribunal would have taken into account Mr Laws' failure to restrict his settings to private, the fact that he was tweeting in the knowledge that he was followed by 65 stores, and that his tweets could be seen by staff and potentially customers. The EAT also found that the tribunal had applied the wrong test in asking whether the tweets, which it had been agreed were offensive, had, in fact, offended someone. The tribunal also made a mistake in focusing on whether the tweets related to Game, or had identified Mr Laws as an employee of Game. There was no requirement for the tweets to specifically relate to Game - the tribunal should have addressed the fact that Mr Laws was following 100 of Game's stores, and was followed back by 65. The case was remitted to a fresh tribunal to decide whether Mr Laws had in fact been unfairly dismissed.

What this means for employers

This is the first EAT decision concerning unfair dismissal and Twitter. The EAT declined to provide general guidance on the use of social media at work, preferring to restate that the usual unfair dismissal test of "range of reasonable responses" will apply if someone is dismissed for misuse of social media. This case confirms that when considering this test an employer is entitled to be concerned that offensive tweets will be read, rather than needing to prove that the tweets have caused offence. As ever with social media employers should be explicit about how social media should be used by employees, and the sanctions that an employee can expect to face if they fall short of these standards.

Game Retail Ltd v Laws

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