What the EAT thinks about Twitter

The explosion of social media has resulted in numerous examples where someone posts something on social media and then immediately regrets, it but can do little to delete it as it is already out there in the internet. We have used a case example to highlight What the EAT thinks about Twitter

Where’s the line?

In an employment context, this can lead to questions being asked about where the line is drawn between work and private life. Employers are finding that some employees will post on social media with little thought for the wider consequences this might have in relation to their employment or the reputation of the Company.

Case Law

In the case of Game Retail Ltd v Laws it was established that an employer who dismisses an employee for posting offensive tweets in their own time, and using a personal Twitter account, may be dismissed fairly, although this will very much depend on the individual facts.

The employee in this case, Mr Laws, was employed by Game Retail Ltd as a Risk and Loss Prevention Investigator, and was responsible for around 100 of its stores based in the north of England. The employer was heavily involved in social media, with each of its stores having their own Twitter profile and feed, for marketing and communication.

In July 2012 Mr Laws opened his own personal Twitter account and began to follow G’s stores for which he was responsible “in order to monitor their tweets for any inappropriate activity”. Although L’s Twitter account did not associate him directly with G, 65 stores began to follow him back.

Mr Laws’ account did not specifically associate him with Game Retail, but he did not restrict his settings, so as a result, his tweets were visible to all. Through his Twitter profile the Claimant posted a number of questionable tweets, including about dentists, golfers, caravan drivers and A&E.   Game Retail described the tweets as, “offensive, threatening and obscene” and including remarks that were “intimidating, racist and anti-disability”.

In July 2013 an anonymous store manager informed a regional manager about the tweets Mr Laws had posted that were allegedly offensive. Game Retail conducted an investigation and, ultimately, found Mr Laws guilty of gross misconduct on the basis he had made 28 offensive tweets and damaged its reputation. He was summarily dismissed and after his internal appeal was unsuccessful, Mr Laws subsequently claimed unfair dismissal in the Employment Tribunal (ET) and succeeded.

Game Retail Ltd. appealed to the Employment Appeal Tribunal (EAT) and it was successful. The case was sent to a new Employment Tribunal (ET) to be reheard. The EAT criticised the ET’s original decision in a number of ways.

Conclusion

The EAT found that it had in fact been relevant to take the following points into account:

1. Although, Mr Laws had been using a personal Twitter account and posted tweets in his own time, those tweets could be seen by the 65 stores that followed him, the employer’s staff and potentially customers. He had failed to set up another account for his private use only.
2. The EAT disagreed with the original Employment Judge, seemingly having considered it relevant that Mr Laws had not posted anything derogatory about his employer, or anything that might reveal that he was an employee of Game Retail Ltd.. The EAT decided that there was some suggestion of a connection that plainly needed to be addressed, given the number of stores Mr Laws followed, and the number that followed him back.
3. It also held that the relevant question was whether Game Retail Ltd. was entitled to reach the conclusion that the material Mr Laws was tweeting might have caused offence, rather than establishing that it had caused actual offence. Although, in the case of Mr Laws there was at least one Game Retail employee who had been sufficiently offended to report Mr Laws.

Striking a balance

The EAT was mindful that a balance had to be struck between an employer’s wish to protect its reputation from social media communications from its employees and an employee’s right to freedom of expression. However, in this case, Mr Laws’ tweets could not be seen as private, even though they were posted from his private Twitter account and in his own time.

Unfortunately for employers, the EAT did not wish to provide general guidance on employee misuse of social media. What the EAT said is that the correct approach is to decide if an employer’s decision to dismiss an employee due to their alleged misuse of social media, falls within the “range of reasonable” responses that an employer in those circumstances might adopt. The EAT also concluded that the questions that arise in making this assessment will always be fact-sensitive and that is true in social media cases, as much as any other.

So, what practical steps should you be taking as an employer?

1. Ensure that you have a clear and robust Social Media Policy in place.
2. Keep this policy under review and regularly updated – it needs to ensure that it keeps pace with social media trends and functionality. Unlike some forms of social media, Twitter can be viewed publicly, so if an employee posts an unacceptable tweet you may consider the likely damage to your reputation. However, your Disciplinary Procedure must still make it clear that any unacceptable online comments will be viewed as gross misconduct.
3. Ensure that your employees are aware of the Social Media Policy, and your expectations of how they should use both their personal and their professional social media and the disciplinary action they may face for breaching those expectations.

Whilst the EAT declined to give general guidance on employees’ personal use of Twitter, it did state that, in future cases, the potential, i.e. likely damage to the employer’s reputation, can be a deciding factor in a dismissal decision.

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