Decision to dismiss employee for offensive non-work related tweet, held as potentially fairThe Employment Appeals Tribunal (“EAT”) considered in Game Retail Ltd v Laws whether an employee’s dismissal for making an offensive non-work related tweet, from a personal Twitter account, was fair.
Mr Laws worked for Game Retail, a computer game store with over 300 stores up and down the country. Each Game store has a Twitter account, and each Store Manager had access to that account to ‘tweet’ material on behalf of their respective store.
Whilst Mr Laws, the Claimant in this case, was not the store manager, he had a personal Twitter account and ‘followed’ a number of Game Retail’s store accounts. It was not clear from Mr Law’s personal Twitter account that he worked for Game Retail or that he was associated with any particular Game store, though 65 Game stores ‘followed’ his personal account. He himself ‘followed’ around 100 Game stores on Twitter, and all of his tweets could be publically viewed (there were no privacy settings in place).
Mr Laws went on to make a number of offensive remarks via his personal Twitter account, some containing ‘colourful’ language. The tweets were spotted by another Game employee who reported the matter, and Mr Laws was subsequently dismissed for gross misconduct.
His unfair dismissal claim was upheld by the Employment Tribunal, as it was said that the reason to dismiss for gross misconduct did not fall within the ‘band of reasonable responses’ open to a reasonable employer in the circumstances. This decision was reached largely because the tweets were said to have been posted for private use, in Mr Laws’ private time, and had no association with the employer.
The decision was appealed to the EAT and succeeded because the EAT did not consider the offensive tweets to be private, and so found that the Employment Tribunal had failed to apply the ‘band of reasonable responses’ test properly.
In particular, the EAT noted the fact that other managers of Game Retail could have accessed the tweets, his Twitter account was not private and available to the public, his offensive tweets could be seen by customers, and 65 Game stores ‘followed’ Mr Laws and could also have sight of the offensive tweets. Having considered a balancing act between the employee’s rights to freedom of expression, and the employer’s rights to minimise reputational concerns via social media platforms such as Twitter, the EAT was not satisfied that the tweets could said to be private. There was a chance that the offensive material could have been read by others, and this was held as being more important than showing that any offence was actually caused in practice.
The case is a good reminder for employees to maintain separate Twitter (or other social media) accounts for work and private purposes and to make clear to employees that their use of social media, both in their work and private life, may impact on their work. In this way, employers have made it clear that irresponsible misuse of social media, whilst done in private time, could still be treated as a disciplinary issue.
For this purpose and to protect recruitment agents acting on behalf of employers, we recommend in particular that a social media policy is issued, particular as use of social media in its various forms becomes a regular part of daily life for many employees.
If you wish to speak about introducing a social media policy to your workforce, or if you would like your existing social media policy reviewed, please speak to your usual Irwin Mitchell contact.
