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A Tweet Too Far: Twitter and Unfair Dismissal

Catching up with one of the more interesting and highly pertinent cases reported just before the festive break, we consider this week the growing amount of social media related gross misconduct dismissals. Clearly such dismissals will only be set to increase over the coming years, parallel to use of social media itself, so this really is an area where having some knowledge of the current case law landscape will be increasingly invaluable to both employers and employees.

In mid-December the Employment Appeals Tribunal (“EAT”) laid down a judgment on what we believe to be the first case at EAT level to deal with an appeal against a twitter related conduct dismissal.

The case of Laws v Game Retail Limited, as it was initially known at the Employment Tribunal (“ET”), concerned Mr Laws, a Risk and Loss Prevention Investigator, who was responsible for loss prevention at around a third of Game’s 300 retail stores nationally, each of which had its own Twitter feed for promotional purposes.

Mr Laws followed the feed of each store to monitor for any fraudulent activity and by return his feed was followed by 65 of those shops.

Via his own feed, Mr Laws made a series of offensive tweets, haranguing and otherwise insulting via foul language various groups including (but not limited to) golfers, Newcastle United supporters, disabled people and the police. A store manager following Mr Laws on Twitter alerted the relevant line management and Mr Laws was suspended and later dismissed on grounds of gross misconduct.

Mr Laws issued a claim for unfair dismissal and was successful at the initial Tribunal. While he admitted the tweets were offensive, argument was advanced that he was not on Twitter purely for work purposes, used his personal phone as well as the fact that the messages were posted in his own time.

The ET held that there was nothing to show that the public or Game’s staff at large had viewed these tweets, and further Game’s disciplinary policy did not expressly state that inappropriate use of social media in an employee’s private time might constitute gross misconduct, though the relevant bullying and harassment policy did account for sending or displaying offensive content on Twitter.

On appeal to the EAT this decision was however overturned. Game accused the original Tribunal of substituting its own view and that the decision had been perverse; the EAT agreed with both of these grounds of appeal.

The EAT’s reasoning is interesting and particular note should be taken of this:

The ET failed to properly take into account Game’s reasoning that Mr Laws had not used any restrictions available to him on his Twitter account, nor had he thought to create two accounts, one for work and one for his personal use. By virtue of him following 100 stores and being followed by 65 in return, this should not be considered as being his private account.

At least one member of staff had seen his tweets and duly reported them as being offensive.

While the Tweets did not reveal Game as being his employer and were derogatory to neither Game nor its staff, there was still a clear connection to Mr Laws’ employment; this was in effect his work Twitter account. The question was not simply whether the tweets were derogatory, but whether they could also be seen as a breach of the express harassment policy.

While it was hoped that the EAT might lay down some general guidance, it did instead merely state that there will be points that could be drawn from this case for future matters, however declined to provide specific guidance for fear that this would be too general and would encourage a ‘tick-box mentality’.

Conclusion

Certainly there are some helpful points here that should be weighed by employers before making a decision to dismiss on the basis of offensive tweets, and conversely employees before tweeting. Again the breadth of the employer’s policies played a critical role.

Despite the social media techno-wrapping of this case, it was however ultimately about unfair dismissal and so the focus rightly remained on whether the employer’s decision to dismiss fell within the band of reasonable responses open to a reasonable employer on the facts of a particular case.

As always if I can provide you with any further assistance on queries relating to social media related conduct matters or any other issue, please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk


Please note that information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. 

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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