Following a recent case in which the EAT overturned a Tribunal decision that a manager was unfairly dismissed for posting offensive and abusive tweets from his personal Twitter account, it would appear that the following factors will be relevant although the EAT declined a request to provide some general guidance:
- 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
- Whether there is anything on the employee’s Twitter profile to link him to the employer
- Whether tweets say anything derogatory about the employer
- Whether they are posted in an employee’s own time or work time
- Whether the employee uses his own equipment or the employer’s.
- Whether the employer’s disciplinary rules make it clear what kind of misuse of social media gives grounds for dismissal.
In an ironic twist, the Claimant Mr Laws was employed by Game Retail Limited as a Risk and Loss Prevention Investigator. He was following the stores on Twitter for which he was responsible in order to detect any inappropriate activity by employees, such as offering video games for sale.
Following the tweets posted by Mr Laws which were deemed to be offensive and abusive, an investigation took place and he was then dismissed for gross misconduct. The initial Tribunal decided that his dismissal was unfair as the tweets had been posted for private use and it had not been established that any employee or customer had seen these or associated him with the company. In addition, the company’s own disciplinary policy did not clearly state that inappropriate use of social media would be treated as gross misconduct.
Clearly, the EAT disagreed and the matter has now been sent back to the Employment Tribunal to be heard by a different judge. It remains to be seen whether or not ultimately, Mr Laws will succeed in his claim. This case provides another example in the ever expanding area of social media that there is a balance to be drawn between an employer’s desire to prevent reputational damage and an employee’s right to freedom of expression. At the very least, employers should have in place a written policy regarding employee’s use of social media whether within or outside the workplace and whether or not their account is in some way linked to the employer.
