Case update (2): Social media – unfair dismissal

Summary: Was an employee unfairly dismissed for tweeting non-work related but offensive comments from a personal Twitter account?

No, says the EAT in Game Retail Ltd v Laws available here.

Facts: The employee, Mr Laws, was the employer, Game Retails Ltd.’s, risk and loss prevention investigator. He opened a Twitter account (which didn’t specifically link him to his employer) and began following the stores for which he was responsible so that he could monitor inappropriate activity. Sixty-five Game stores subsequently followed Mr Laws, after one of its managers encouraged them to do so.

After one of the employer’s store managers complained that the employee’s tweets were offensive, the employer conducted an investigation. It identified 28 tweets as being offensive – adverse comments were made about various groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people.

The employee was the subject of disciplinary action which resulted in his summary dismissal for gross misconduct and this sanction was upheld by the employer on appeal. A key factor in the employer’s decision to dismiss was the fact that, even though the Twitter account in question was personal, the employee was followed by stores for which he had responsibility as part of his job for and so employees and customers of these stores could and did see his offensive tweets.

The employee brought an unfair dismissal claim in the Tribunal. The Tribunal upheld his claim and decided that dismissal was not within the band of reasonable responses. The tweets had been posted using Mr Law’s own phone, outside working hours, and for private purposes. It hadn’t been established that any member of the public had access to Mr Law’s Twitter feed and had connected him with the company. Also relevant was the fact that Game’s disciplinary policy didn’t specifically say that use of social media in this way could be treated as gross misconduct.

The employer appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the appeal and said that dismissal could have been within the “range of reasonable responses”. The EAT sent the case back to a new Tribunal to decide whether in fact dismissal was within this range.

The EAT’s decision was based on the facts that:

• the employee had not attempted to ensure that his tweets only went out to a private audience – he hadn’t set up two accounts (one personal, one professional), nor had he adjusted his settings to restrict his followers.

• the employee was knowingly tweeting in the context of having some 65 of the employer’s stores following his feed – and on the recommendation of a store manager. It therefore couldn’t be considered private usage.

• the Tribunal should have taken full account of the public profile of Twitter when finding that an employee’s dismissal for gross misconduct for posting offensive tweets was unfair.

However, the EAT stressed that cases in this area are fact-sensitive and that the usual “range of reasonable responses” test applies.

The EAT steered away from issuing guidance on misuse of Twitter. Each case would have to be judged by its own specific facts within the context of the post, which may have been made on various different social media platforms.

Implications: Most of the case law in the UK on dismissals related to employees’ social media activity has only been at Tribunal level. Therefore this is an interesting case as it does show that the EAT is prepared to allow dismissal for the apparently personal and private use of Twitter and other social media.

It’s a shame that the EAT did not give any specific additional guidance about how employers should address social media issues. However, this case does emphasise the need:

• for employers to develop, publicise, monitor and enforce clear and detailed IT and/or social-media policy;
• to require staff to use separate accounts for personal and work purposes;
• to take into account when dealing with potential misuse:
  • the nature and seriousness of the alleged misuse;
  • any previous warnings for similar misconduct in the past;
  • any actual or potential damage done to customer relationships and (if applicable) the speed with which any offending posts are removed;
  • what the tweets say;
  • the employee’s settings – have these been restricted?; and
  • the association that may be made between the employee and the employer (not just in the profile section, but throughout the Twitter feed).

Ultimately the test of whether dismissal is fair in the context of employees’ conduct on social media remains highly fact specific and employers will always need to be able show that the circumstances genuinely warrant dismissal.