In the first Twitter related case to be heard by the Employment Appeal Tribunal, it has been suggested that an employee using a personal Twitter account for their own personal reasons could have been fairly dismissed when they were dismissed for posting abusive tweets.
In the case of Laws v Game Retail Ltd, while the company had store Twitter accounts, Mr Laws had a personal Twitter account which gave no indication of his affiliation to the company. He followed several Game store Twitter accounts and 65 of those accounts also followed him. An investigation was commenced after the company became aware of offensive tweets on his account. They found that 28 tweets that could be perceived as offensive, threatening or obscene had been posted. As a result of the investigation, Mr Laws was dismissed for gross misconduct.
An Employment Tribunal found that he had been unfairly dismissed, although he had contributed to his dismissal to some degree. It was suggested that as he used Twitter as his personal account, using his own mobile phone and that his tweets were not work related or derogatory to the company in any way.
Game appealed the decision. The Employment Appeal Tribunal did indicate that – “we recognise that there is a balance to be drawn between an employer’s desire to remove or reduce reputational risk from social media communications by its employees and the employee’s right of freedom of expression.” The Employment Appeal Tribunal considered though that Mr Laws had no privacy restrictions on his account, was following Game stores, Game stores knew he was on Twitter and were following him. They concluded that the decision of the Employment Tribunal was perverse.
Rather than substituting their own decision, as cases like this are so fact dependant, the Employment Appeal Tribunal decided to send the case back to a new Employment Tribunal for them to hear the case again.
This case highlights the fine line that must be drawn between an employee’s right to free speech and protecting the business interests of the company. Every case will depend on its facts and an Employment Tribunal must determine if the dismissal fell within the band of reasonable responses open to an employer.
As a business, you would be wise to have strong social media usage policies in place. Employers should however maintain a sense of perspective. You should be clear as to what you expect from your employees, whether any accounts they have are linked in any way to their work and what you deem to be acceptable conduct on social media platforms.
With the popularity of Twitter, Facebook and other social media platforms remaining as high as ever, this is unlikely to be the first time the Employment Appeal Tribunal will consider social media dismissals.
If you have been dismissed for posting on social media and need help, tweet us @howellsemplaw
If you are an employer wanting assistance with implementing social media policies, get in touch. #beprepared
Tom Bernard, Solicitor