Causing Offence: What we should learn from EAT’s first Twitter case28 Jan 2015
In the recent case of Game Retail Ltd v Laws (UKEAT/0188/14), the Employment Appeal Tribunal (EAT), in the first twitter case heard by them, decided that non-work related offensive tweets posted by an employee on a private twitter account could justify dismissal for gross misconduct.
The employee in question was employed by Game as a Risk and Loss Prevention Investigator and was responsible for 100 stores in the North of England. As part of his role, he followed 100 Game stores through his private Twitter account; 65 of these stores followed him back. Following a complaint by a colleague regarding his tweets, Game launched an investigation and found a number of tweets which they considered to be “offensive, threatening and obscene”. He was subsequently dismissed for gross misconduct and brought a claim for unfair dismissal.
The Employment Tribunal held that he had been unfairly dismissed. This decision was based on a number of considerations, including: the fact that his account was registered for private use; the tweets concerned non-work related matters; his account did not indicate that he was affiliated with Game; he posted the tweets in private time; it had not been established that the public or staff had access to his tweets; and Game’s social media policy did not state that misuse of social media in private time could constitute gross misconduct.
The EAT overturned this decision. This decision was primarily based on the fact that Twitter is a forum of a public nature. The EAT reasoned that the employee had made no attempt to modify the privacy settings on his account and therefore must have known it was publicly visible. The EAT further held that there was no requirement to show that the posts had caused offence, only that they had the potential to cause offence. They found that the employer’s right to remove or reduce reputational risk through social media has to be balanced against the employee’s freedom of expression.
When asked to provide general guidance in relation to social media, the EAT declined to do so, instead indicating that decisions will be made on a case-by-case basis, depending on the facts. Issues that can be considered in deciding on sanctions for misuse of social media are: the existence and contents of a social media policy; the nature and seriousness of the misuse; whether there are any previous warnings in place; and any actual or potential damage to customer relationships. The test will remain to be whether dismissal is within the range of reasonable responses available to the employer and, as stated by the EAT, this will depend on the facts of the case.
What has been established by this case is that the extent of the potential audience for a post is key. Had the employee restricted his privacy settings, the outcome of this case may have been different.
For employers, in light of this case, it is a good idea to review your existing social media policies to ensure they make clear that employees can be dismissed for social media posts made outside of working hours that are not affiliated to the company.
If you have any further queries regarding social media, please contact Kuits’s Employment Team on 0161 838 7806 or contact us.