Opinion.

How should employers respond to inappropriate tweets?

19/12/2014

At a glance

Following our recent breakfast seminar on the use of social media in the workplace, the recent case of Game Retail Ltd v Laws highlights the importance of clear social media and disciplinary policies and the need for a reasonable response from the employer in deciding what disciplinary action to take.

In this case, the Employment Appeal Tribunal (EAT) overturned an earlier Tribunal judgment that the decision to dismiss an employee who had posted offensive tweets was unfair. The case was remitted back to the Employment Tribunal for fresh consideration.

In detail

The facts of the case are…

Mr Laws was employed by Game Retail Ltd and had responsibility for over 100 retail stores in his position as a risk and loss prevention investigator. Mr Laws opened a Twitter account to better monitor the stores he supervised, although the account did not specifically relate to his employment by Game Retail Ltd. He followed all 100 stores and was followed by managers or deputy managers of 65 stores.

In July 2013 an anonymous store manager notified one of Game Retail Ltd’s regional managers about allegedly offensive and abusive tweets posted by Mr Laws. Following an investigation Mr Laws was found guilty of gross misconduct and summarily dismissed. Mr Laws subsequently brought a claim to an Employment Tribunal for unfair dismissal.

Whilst the EAT noted that there is a balance to strike between an employer’s desire to remove or reduce reputational risk from social media and the employee’s right of freedom of expression, the EAT overturned the initial finding by the Tribunal of unfair dismissal. It held that the Tribunal had failed to properly consider the 65 stores that were followers when deciding upon the element of privacy in the tweets. Of particular relevance was that Mr Laws had made no attempt to use restriction settings, had not created two accounts (one with which to follow the stores and the other for purely private use) and he had not taken steps to address another store managers encouragement for other stores to follow him.

What practical advice can be taken from this case?

Even when prompted, the EAT refused to lay down specific guidance regarding dismissal for social media misuse, stating that cases are fact-sensitive and to lay down a list of criteria would encourage a “tick-box mentality that is inappropriate in unfair-dismissal cases”. It did set out some general guidance but said that “these points are either so obvious or so general as to be largely unhelpful”:

  • whether an employer has an IT or social-media policy;
  • the nature and seriousness of the alleged misuse;
  • any previous warnings for similar misconduct in the past; and
  • actual or potential damage to customer relationships.

So, alas, no help from the EAT then!

However, it does serve as a warning to both employees and employers:

  • ‘Tweeting’ employees should be aware that even if tweets are sent outside work hours and are directly primarily at non-colleagues they may still result in disciplinary action and even dismissal if found to be offensive.
  • Any social media policy will need to be clearly worded if the employer wishes to be able to rely on a breach of it in order to discipline or dismiss an employee.
  • A decision to summarily dismiss will need to involve the employer applying the range of reasonable responses test, which will involve considering 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.

The Employment Team

Information contained in this post does not constitute legal advice and is provided for informational purposes only. Recipients should not act upon it, but should seek legal advice relevant to their own situation.

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