Laws v Game Retail Ltd: to tweet or not to tweet?
Offensive tweets on personal Twitter accounts may now be a cause for fair dismissal according to the Employment Appeal Tribunal (EAT)
The Employment Appeal Tribunal (EAT) faced its first unfair dismissal case recently where an employee’s Tweets were the cause for his dismissal from work.
The Claimant, Mr Laws, was a Risk & Loss Prevention Investigator for Game Retail, and had responsibility for approximately 100 of Game’s 300 retail stores. Each store had its own Twitter account which was used to publicise and promote each individual store.
The Claimant followed each of the individual Twitter accounts to monitor inappropriate and/or fraudulent activity, and used his personal Twitter account to do this. About 65 of the stores ‘followed’ Mr Laws in return.
Mr Laws posted various offensive Tweets from his account using foul and abusive terms. One of the Store Managers (who followed him) noticed the tweets and alerted Mr Laws’ manager, which lead to his suspension and eventual dismissal for gross misconduct.
Mr Laws issued an unfair dismissal claim in the Employment Tribunal (ET). He was successful and the Judge deemed he had been unfairly dismissed because his dismissal was not a ‘reasonable response’ for an employer to take.
The Judge held this for various reasons. Namely because Mr Laws mainly used Twitter for private use, he used his personal mobile phone, the content of his Tweets were not work related, and he posted the tweets in his own time.
Game Retail appealed to the Employment Appeal Tribunal (EAT) and this decision has been overturned.
The EAT held that while Mr Laws had been using Twitter in his own time, on his own personal account (which didn’t expressly affiliate him to Game) and from his own phone etc, his tweets had been seen by members of Game staff and Game stores’ Twitter accounts. So his Twitter feed couldn’t properly be considered as private, especially on the basis that no privacy restrictions had been set on his account to limit the audience receiving the Tweets.
So the initial ET decision that Mr Law’s tweets amounted to private social media usage and were not work related was wrong.
The Employment Appeal Tribunal chose to remit this case back to another Tribunal to reconsider the potential fairness of the dismissal.
What this means for you
Interestingly, the EAT declined to provide any general advice. In all cases involving social media, the focus will remain on whether an employer’s decision was within the range of reasonable responses open to a reasonable employer (this is the legal test of assessing fairness of a dismissal).
So it’s important that you have clear policies in place that set out exactly what is and is not acceptable in terms of social media.
You should also take into account:
- What the tweets say
- The employee’s settings – have these been restricted?
- The relationship made between the employee and the employer (not just in the profile section, but throughout the Twitter feed)
- Use of separate accounts for personal and work purposes
- What your company policy says on social media misuse
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