Twitter and unfair dismissal – is a private profile really private?
Overview
The Employment Appeal Tribunal has decided that an employer acted properly in dismissing an employee for posting abusive tweets on a personal Twitter account. The case gives some guidance on what employers should take into account if they are involved in disciplining an employee for comments made on social media.
Background
In Game Retail Ltd v Laws, Mr Laws was employed as a risk and loss prevention investigator responsible for investigating losses, fraud and theft. He had responsibility for 100 stores.
He opened a personal Twitter account which did not specifically link him to his employer. He started following the stores for which he was responsible in order to detect any inappropriate activity by employees.
One local manager tweeted on his store account an encouragement to other stores to follow Mr Laws and 65 stores did so.
In July 2013, a manager of one of these stores alerted Game to some tweets made by Mr Laws which they had seen and found offensive. Further to a disciplinary hearing, it was held that Mr Laws was guilty of posting a number of tweets of an offensive nature. The person chairing the disciplinary hearing viewed the tweets as;
“offensive to…groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people.”
Mr Laws was dismissed for gross misconduct.
Decision at the Employment Tribunal
Mr Laws claimed unfair dismissal and the employment tribunal upheld his claim.
At Tribunal the judge accepted that customers and employees might have been offended by the tweets. Even so, the judge considered that dismissal was not within the band of reasonable responses as the tweets had been posted for private use and it had not been established that any employee or customer had seen his tweets or associated him with the company.
In addition, the company’s disciplinary policy did not clearly state that inappropriate use of social media in an employee’s own time would be treated as gross misconduct.
The employer appealed to the EAT which overturned the tribunal’s finding.
Decision of the Employment Appeal Tribunal
The EAT appeared to have a better understanding of Twitter than the employment tribunal. It decided that Mr Law’s followers were not restricted to social acquaintances. Customers and employees would have been able to see his tweets. He had not made use of the restriction setting on his account, nor had he set up separate accounts, one to follow the stores and one for purely personal use. The 65 stores that followed him would have seen his tweets, as would any customers who “followed” or looked up his Twitter account.
Advice for employers?
The EAT was asked to provide some general guidance on cases involving alleged misuse of Twitter but declined to do so. However, it would appear from the EAT’s decision that the following factors will be relevant when deciding whether a dismissal is unfair:
- The nature of the tweets and how offensive they are
- Whether the tweets are made on a purely personal Twitter account
- Whether privacy restrictions are in use so that only friends can see tweets
- Whether there is anything on the employee’s Twitter profile or in any of the tweets to link him to the employer
- Whether tweets say anything derogatory about the employer
- Whether the tweets are posted in an employee’s own time or in work time
- Whether the employee uses his own equipment or the employer’s to tweet
- Whether the employer has clear rules on what can and cannot be done on social media.
In light of this case, it is clear that dismissals relating to social media usage, and even personal social media usage, can be potentially fair. It would seem that key elements will be whether the usage was truly private and, as ever, whether the employer has an appropriate policy in place.
For guidance or advice on framing a social media policy please contact Catriona Sutherland on 01463 239393.
