Dismissal for offensive tweets

Posted by Oliver Weiss on
Is it within the range of reasonable responses to dismiss an employee who posts offensive but non-work related tweets from a personal Twitter account? Potentially, ruled the Employment Appeal Tribunal in the case of Game Retail Ltd v Laws UKEAT/0188/14, although it refused to lay down general guidance in such circumstances.

Mr Laws was employed by Game Retail as a risk and loss prevention investigator, responsible for 100 of its stores in the north of England.

Game Retail relies upon Twitter for publicity and marketing and each store has its own Twitter account, which is operated by the store manager or deputy manager. Twitter is a social media website which has experienced rapid growth in recent years. Registered users can post messages (called "tweets") of up to 140 characters. These can be accessed by anybody looking at the Twitter account in question, unless the user restricts the privacy settings on their account. Restricting the privacy settings means that only other registered users who elect to follow the account in question will be able to read the tweets. Mr Laws had set up a private Twitter account, which did not identify him as being connected with Game Retail in any way, but he began to follow the Twitter accounts of the stores for which he was responsible, and 65 Game Retail stores followed his account.

In July 2013, one of the store managers notified a regional manager of some tweets posted by Mr Laws which were alleged to be offensive towards a number of groups within society. A full investigation was carried out and Mr Laws was summarily dismissed for gross misconduct.

Mr Laws brought an unfair dismissal claim in the Employment Tribunal. The Tribunal found in his favour on the grounds that, whilst potentially shocking and offensive, the tweets were private and there was nothing to reveal that Mr Laws was an employee of Game Retail. It held that dismissal was outside the range of reasonable responses in this case.

On appeal, the Employment Appeal Tribunal overturned this decision. The EAT disagreed with the Tribunal's conclusion that, contrary to the employer's belief, Mr Law's account was private. It noted that Mr Laws had failed to restrict the privacy settings on his account and that his tweets would be going out to the 65 Game stores who followed him. It concluded that the Tribunal had substituted what it thought was relevant rather than asking what might be the view taken by the reasonable employer and in answering the latter the Tribunal should have considered the employer's concern that the tweets may have been read by other staff and customers and caused offence. The EAT directed that the case should be passed to a different Tribunal to reconsider this question.

It is interesting to compare the conclusion reached by the EAT to the decision in Smith v Trafford Housing Trust [2012] EWHC 3221, where the High Court decided that an employer could not characterise non-work related views posted by an employee on Facebook as misconduct. The Court found that Mr Smith’s Facebook wall was restricted to personal and social use, notwithstanding the fact that it identified him as working for the employer and that he was Facebook friends with many of his colleagues.

These cases serve as a stark reminder of the contentious issue of social media use by employees. ACAS have acknowledged that there can be confusion over what constitutes “acceptable behaviour” regarding social media, and the apparent distinction drawn in this case between the potentially more private nature of Facebook and the public nature of Twitter underlines this. Striking the balance between an employee’s freedom of expression and an employer’s right to protect itself from (potential) reputational damage is a delicate exercise and will turn on the facts of each case.

The EAT declined to offer guidance in cases where a dismissal relates to the alleged misuse of social media. The EAT felt that, given the fact-sensitive approach which tribunals must take in relation to such cases, any guidance would be so general so as to be unhelpful. Nonetheless, the case highlights again for employers the importance of providing guidance and training for employees on the acceptable use of social media, as well as a policy that ties in with the employer's disciplinary and other policies (e.g. harassment policy).

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Oliver heads up the London Employment, Pensions & Benefits and Immigration Team.

Oliver Weiss
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