The first unfair dismissal case involving Twitter has reached the Employment Appeal Tribunal (EAT) and serves as a reminder to employers to ensure that they have clear disciplinary policies in place involving the inappropriate use of social media.
Game Retail Limited v Laws
The case involved an employee of Game Retail Limited (Game), Mr Laws, who was dismissed for posting offensive tweets. Mr Laws worked as a risk and loss prevention investigator and had responsibility for around 100 stores in England. Each store had their own Game Twitter account followed by a large number of customers.
Mr Laws set up his own personal Twitter account and followed the stores he was responsible for. He did not expressly affiliate himself to Game on his account but as a result of one of the store managers actively encouraging his own followers to follow Mr Laws, 65 Game stores began following Mr Laws.
Disciplinary procedure
An investigation was held after a regional manager was notified of offensive comments, unrelated to Game, tweeted by Mr Laws. The company concluded that as the comments were in the public domain and could be read by customers, Mr Laws’ actions amounted to gross misconduct and he was dismissed.
Employment tribunal decision
The employment tribunal decided that that the decision to dismiss him did not fall within the band of reasonable employer responses because:
- Mr Laws’ Twitter account was private and was not affiliated to the company
- he tweeted on his own mobile phone on matters unrelated to work
- the offensive comments were posted in his own time and not work time
- The judge found that his dismissal was therefore unfair.
Appeal
Game appealed on the ground that the judge had substituted his own view for that of the reasonable employer when considering whether the dismissal was within the range of reasonable responses.
The EAT observed that the tweets could be read by the 65 stores following Laws, as well as by customers and that in the circumstances, the question of whether Mr Laws’ use of Twitter could correctly be described as private had not been properly tested by the employment tribunal.
The EAT allowed the appeal, stating that the judge had indeed erred in substituting his own view and remitted the case to a new employment tribunal for fresh consideration.
Test to be applied
It is not surprising that the EAT declined to give general guidance about Twitter cases, as requested by Game, since each case should be considered on its individual merits. The EAT did however confirm that the test to be applied when considering unfair dismissal cases is whether the employer’s decision and the process in reaching that decision falls within the range of reasonable responses open to the reasonable employer on the facts of the particular case.
Points to consider
Here are some points to consider when deciding whether an employee’s actions on social media should be subject to disciplinary action:
- Posting comments on a private social media account outside work time does not necessarily mean that it is not a disciplinary matter. Factors such as privacy settings and followers should be taken into account when considering how ‘private’ a private social media account actually is.
- Even if the comments have nothing to do with the employer, disciplinary action could still be taken if they breach company bullying and harassment policies by being discriminatory or abusive in nature.
- Employers have the right to protect their business interests notwithstanding freedom of expression.
Disciplinary Procedure Policy
The Clickdocs Disciplinary Procedure Policy includes a clause on the inappropriate use of social media.
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