In what is believed to be the first Employment Appeal Tribunal decision involving Twitter, the EAT has held that an Employment Tribunal failed to fully consider the public nature of Twitter when finding that a dismissal for posting offensive tweets was unfair.
Mr Laws was employed by Game Retail Limited (Game) as a risk and loss prevention investigator. He set up his own Twitter account and followed the stores for which he had responsibility, in order to monitor tweets. Of the 100 stores Mr Laws followed, 65 followed him in return, after a manager posted a tweet (subsequently retweeted by Mr Laws) encouraging stores to follow him.
One of the store managers who followed Mr Laws informed Game that Mr Laws had posted several offensive tweets. Game concluded that his actions amounted to gross misconduct and he was summarily dismissed.
Mr Laws claimed unfair dismissal. The Employment Tribunal found that the dismissal was unfair but reduced the award by 40% to reflect Mr Laws’ contribution to his dismissal.
Game appealed. The EAT held that the Employment Tribunal had either substituted its own view for that of a reasonable employer or it had reached a perverse decision. In particular, the Employment Tribunal had failed to properly test whether Mr Laws’ use of Twitter could be described as private. Mr Laws had not restricted his tweets to a private audience and he had tweeted in the knowledge that 65 stores followed his feed (indeed, he had retweeted encouragement to follow him). He did not have a separate account purely for personal use.
The Employment Tribunal was also criticised for its inconsistent approach. Despite finding as a matter of fact that members of the public and employees had access to Mr Laws’ account and that one member of staff had complained about the tweets, it had nonetheless concluded that there was no evidence that any member of staff had access to the tweets or found them offensive. This was plainly wrong.
It was irrelevant that Mr Laws had not posted anything derogatory about Game and he did not identify himself as an employee of Game. There was clearly an association between Mr Laws and Game given that he followed 100 stores and 65 followed him back.
While the EAT recognised that employees have a right to express themselves, this must not infringe upon their employment and the employee’s right must be balanced against the employer’s right to protect its reputation.
The EAT declined to give general guidance on how employers should deal with misconduct involving social media. Such cases are likely to be fact sensitive and the general test which applies to unfair dismissal cases (ie whether an employer has reached a decision within the band of reasonable responses) is sufficiently flexible to be applied to claims involving social media issues. The case was remitted to a different tribunal for fresh consideration.
This decision is a useful reminder that employers should ensure that they have clear social media policies in place. The way businesses use social media is constantly evolving and it is important that employers ensure the policy remains reflective of their current practice.