With the growth of social media, both employers and employees must take caution when it comes to the content posted online.
In a case in 2013, the Employment Appeals Tribunal (EAT) held that an Employment Tribunal Judgel failed to take account of the public nature of Twitter when finding that an employee was unfairly dismissed for posting offensive comments on the site.
Mr Laws was a Risk and Loss Prevention Investigator at Game Retail, and (ironically in the context of this case) part of his role was to monitor inappropriate Twitter activity by employees. To this end, Mr Laws set up his own Twitter account. This account did not associate him directly with his employer, however, Mr Laws ‘followed’ 100 of the employer’s other stores’ Twitter accounts, of which 65 stores ‘followed’ Mr Laws in return.
Following a complaint by one of the Store Managers, the employer investigated Mr Laws’ Twitter account and classified 28 tweets as being offensive. On this account, adverse comments were made about various groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle United supporters, the police and disabled people.
Mr Laws was the subject of disciplinary action with resulted in his dismissal for gross misconduct, a sanction upheld by the employer on appeal. The employer argued that even though the Twitter account in question was personal, Mr Laws was followed by stores for which he had responsibility as part of his job, and so employees and customers of these stores could, and did see his offensive tweets.
Mr Laws brought a claim for unfair dismissal. An employment tribunal upheld the unfair dismissal claim to which Game Retail appealed.
The EAT ruled that the tribunal had failed to give credit to the employer’s concern that other stores were viewing Mr Laws’ tweets. Mr Laws had failed to restrict his Twitter settings to ‘private’ and was aware that his tweets could be viewed by the 65 stores following him, other staff and potentially customers.
In addition to this, the EAT held that the tribunal had been mistaken in focusing on whether the tweets related to Game Retail or had identified Mr Laws as an employee. Instead, it should have focused on whether the tweets were offensive and whether other staff or customers may have read them. The EAT declined to provide general guidance on the misuse of social media. The correct approach is to apply the ‘range of reasonable responses’ test to the particular facts.
The use of social media is fast expanding in the workplace. While an employer may legitimately restrict an employee’s freedom of expression at work, whether this can be extended to personal, out-of-work activities will depend on the circumstances of each case.
This case emphasises the need for employers to develop, publicise, monitor and enforce clear and detailed social media policies which give employees’ clear guidance as to what is and is not acceptable in both their work-related and private social media activity.
If you would like assistance in drafting or reviewing your social media policy, please call Orla Bingham on 01279 755777 or email firstname.lastname@example.org