LEGAL CORNER: Offensive tweets: sufficient to dismiss?

27th Feb 2015

The Employment Appeal Tribunal recently adjudicated upon the first appeal to be heard about a dismissal relating to the use of Twitter (Game Retail Ltd v Laws UKEAT 0188/14). Mr Laws had been employed by Game since 1997 as a risk and loss prevention investigator with responsibility for about 100 of its stores. Game’s stores placed great emphasis on the use of Twitter for marketing and communication. Each store had its own Twitter profile and feed and a large number of customers ‘followed’ their local stores. Mr Laws set up his own personal Twitter account and followed the stores for which he had responsibility in order to monitor their tweets, particularly any inappropriate activity by their employees. Of the 100 stores he followed, about 65 followed him back.

In July 2013 a senior manager at Game was made aware of tweets from Mr Law’s account that were considered to be offensive, threatening and obscene. Mr Laws was suspended and following a disciplinary hearing, he was summarily dismissed for gross misconduct.

Mr Laws brought a claim of unfair dismissal. The tribunal accepted that the material posted by Mr Laws was offensive. However, they found that the decision to dismiss was not a reasonable one because Mr Laws had principally joined Twitter to communicate with acquaintances outside work, and the offensive tweets had been posted in his own time rather than work time. Moreover, there was no evidence that any member of the public had seen the tweets and associated them with Game. The tribunal were also conscious of the fact that Game’s disciplinary policy did not contain a clause that would have made employees aware that offensive or inappropriate use of social media in private time could be construed as gross misconduct. The tribunal therefore found that the decision to dismiss was unfair, although they accepted that Mr Laws was guilty of some misconduct and reduced any compensation awarded to him by 40%.

Game appealed to the Employment Appeal Tribunal (EAT). They argued that the tribunal had substituted their own views for that of the employer, rather than considering whether the decision to dismiss was within the ‘range of reasonable responses’ open to an employer in all the circumstances of the case. The EAT found that the tribunal had not properly tested the question whether this was a case where Mr Laws use of Twitter could be considered ‘private’ or not. Although the tweets were posted in his private time and related to private (rather than work) matters, he was followed by a number of stores and possibly by some of the customers of those stores. He had not created a separate account for work related matters (monitoring the stores for whom he had responsibility) and another for private use, nor had he set any restrictions on his account. Moreover, although the tribunal had found that there was no evidence of association with Game, they had not fully considered the effect of Mr Laws following 100 stores and being followed back by 65. There was clearly an issue of the offensive tweets being seen by those 65 stores and any other customers who followed Mr Laws, but this connection between Mr Laws account and his employer was not properly analysed. They had also ignored the fact that it was a Game manager who had been offended by the tweets and reported them to management. Whilst the EAT acknowledged that employees must have the right to express themselves, it found that the right to freedom of expression must not infringe upon their employment and must be “balanced against the employer’s desire to remove or reduce reputational risk from social media communications.”

The EAT therefore decided that the decision of the tribunal could not stand, and the matter had to be reconsidered by a different tribunal in the light of the criticisms made. They noted however that the decision could go either way upon further analysis.

This decision is a reminder that employers need to have clear and robust social media policies in place, which state when disciplinary action may be taken against an employee. It also makes clear that an employer needs to consider how private an employee’s account actually is, the extent to which the tweets might be considered to have infringed other policies, such as those relating to bullying and harassment, and the balance between freedom of expression of the employee and the needs of the employer in protecting its interests.

Safia Tharoo, Barrister, 42 Bedford Row, London

 

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