Think before you tweet!

6 January, 2015
by: Cripps Pemberton Greenish

In the recent case of Game Retail Ltd v Laws the Employment Appeal Tribunal (EAT) overturned the Employment Tribunal’s (ET) finding of unfair dismissal where an employee posted offensive tweets from his personal Twitter account.

Background of the case

Mr Laws was employed as a Risk and Loss Prevention Investigator for Game Retail Ltd (Game), and responsible for over 100 of its retail stores. In order to monitor the activity of these stores, Mr Laws started following their Twitter accounts from his personal account, which he set up in July 2012. Shortly after, 65 Game stores started following Mr Laws’ account. Over a year later, as a consequence of a number of Mr Laws’ tweets being identified as offensive and abusive, he was found guilty of gross misconduct and summarily dismissed.

The ET concluded that the dismissal was unfair primarily because Mr Laws’ account had been set up to communicate with people in a personal capacity. The ET held that as the offensive tweets had been posted outside of working hours and Game’s disciplinary policy did not explicitly define an inappropriate private use of social media, it could not constitute gross misconduct.

The appeal

The EAT overturned the ET’s decision for the following reasons:

  • The public nature of Twitter means that access to posts is not restricted unless privacy settings are enabled. As Mr Laws had not secured his feed, the 65 stores following him could view his tweets;
  • The question of whether the tweets were posted outside of working hours was irrelevant as they could be accessed by the public at any time; and
  • It was irrelevant that Mr Laws did not make derogatory comments about Game itself; it was enough that he could be identified as an employee of the company.

The EAT refrained from issuing general guidance for future social media cases and instead highlighted the standard test of ‘range of reasonable responses’, pointing out that each case should be assessed on its own facts.

Although the EAT ultimately found in favour of the employer, this case demonstrates that the issues are not quite so clear-cut in the domain of social media. Employers should therefore think carefully about putting policies and procedures in place to monitor their employees’ social media activity to protect their reputation.