Twitter trouble- social media and dismissal

31st December 2014 Twitter, Facebook and social media are here to stay. Business, as well as individuals make increasing use of social media. It is seen as important to many businesses as a means of advertising and increasing their profile and reaching the broadest possible range of customers and clients. As a consequence businesses can be damaged when derogatory comments are made about them on social media sites.

However, despite the fact that the right image on social media is important to businesses, we find that incidents of employees making derogatory comments about their employer on such sites continues to be a problem. It seems that many employees still fail to appreciate the effect that damaging comments on Twitter or Facebook can have on a business, and many still consider comments on Twitter of Facebook to be private - or at least they fail to give any thought to this when using social media. A recent case in the Employment Appeals Tribunal (EAT) provides an illustration of some of the issues raised when an employee makes offensive comments about their employer on social media.

The case in question, Game Retail Ltd v Laws concerned Mr Laws, who was employed by Games Retail, a games retailer with over 300 stores in the UK. He was employed as a risk and loss prevention investigator with responsibility for over 100 stores. In this position he was required to investigate losses, theft, fraud and conduct audits in the stores. Each store had its own Twitter account, profile and feed. Games Retail's stores used Twitter and social media as an important part of their marketing and advertising. A significant number of customers followed the company's Twitter account. Mr Laws opened his own Twitter account and began to follow Game Retail's stores for which he had responsibility in order to be able to monitor their tweets and to monitor any inappropriate activity. However, his account did not expressly associate him with Games Retail. Neverthless, one of Games Retail's regional managers tweeted an encouragement for other stores to follow Mr Law's Twitter account, and 65 stores did so.

In July 2013 a store manager notified a regional manager at Games Retail that Mr Laws had made a number of potentially offensive and abusive tweets. An investigation was commenced, and the company concluded that 28 of the tweets were offensive. The investigator found that Mr Law's tweets were in the public domain, were clearly accessible to a number of their stores, and that some of the tweets were offensive. Mr Laws was dismissed as a result, on the basis that his behaviour amounted to gross misconduct.

Mr Laws brought a claim in the Employment Tribunal, which ruled in his favour, finding the dismissal to be unfair.The Employment Tribunal concluded that the tweets were for private use, sent in Mr Law's private time, and that the company's disciplinary policy did not explicitly state that inappropriate use of social media would be treated as gross-misconduct.

Game Retail issued an appeal against the decision of the Employment Tribunal. The EAT upheld the appeal. The EAT found that the Employment Tribunal had been wrong in concluding that Mr Law's followers were restricted to social acquaintances. It noted that the 65 stores that were following Mr Laws could see the abusive offensive tweets as could any customer that had picked up on Mr Law's Twitter account. Further, Twitter could be accessed freely by customers. The Employment Tribunal had failed to actually question whether Mr law's use of Twitter was in fact private or not. The conclusion that there was merely a "theoretical risk" of employees or members of the public seeing the tweets was inconsistent with the facts.

Although the EAT was asked to give general guidance on this issue, it simply stated that the dismissal was subject to the standard tests of fairness and range of reasonable responses that the Employment Tribunal is required to apply in misconduct dismissal cases. However, the EAT did suggest that certain factors, such as the question of whether or not the employer has a social media policy and whether or not there was potential damage to customer relationships might be relevant in similar cases.

The case indicates that employers ought to have and implement policies on the use of social media by staff, but that it is still appropriate to consider the public nature of postings on social media, particularly where the posts are abusive or derogatory about the employer.

Employees need to learn that posts on social media can be open to large numbers of people to read and respond to, including fellow employees , customers and potential customers. Therefore employees should be careful about how they use social media.

At Hallett Employment Law Services Ltd we can help employers in writing and introducing appropriate policies and procedures to deal with social media and the sue of such media by their staff. If you require assistance on the issues raised in this article do not hesitate to contact us.