In what is thought to be the first such case involving Twitter, the Employment Appeal Tribunal has overturned an Employment Judge’s decision that an employee was unfairly dismissed after posting offensive tweets.
Although the EAT declined to give general guidance about the manner in which misconduct involving social media should be dealt with, the issues in the case give rise to some important practical points for employers.
Background
The claimant, Mr Laws, worked for Game Retail as a risk and loss prevention investigator with responsibility for investigating losses, theft, etc., for around 100 stores in the north of England.
As with many businesses, Game used Twitter and other social media for marketing purposes. Each of Game’s stores had its own Twitter account which was administered by the store manager. Mr Laws opened his own Twitter account to monitor the stores for which he was responsible to see if anything happened with their communications that was unacceptable. Of the 100 stores which Mr Laws followed, 65 followed him in return. This was because the manager in the Preston store had posted a tweet encouraging other Game stores to follow Mr Laws.
Over time, Mr Laws started to use Twitter as a way to vent his frustrations at various non-work related issues, using highly offensive language. (See paragraph 13 of the judgment for some examples.)
One of the store managers who followed Mr Laws brought these offensive tweets to Game’s attention. Following an investigation and then a disciplinary hearing, Mr Laws was dismissed for gross misconduct on the basis that he had posted “offensive, threatening and obscene tweets” which were available in the public domain.
Employment Tribunal’s Decision
The Employment Tribunal decided that the decision to dismiss Mr Laws did not fall within the so-called “band of reasonable responses” for these reasons:
Mr Laws had not registered on Twitter as part of his job but principally to communicate with friends outside of work using his own mobile phone, and concerning matters which were nothing to do with work
There was no evidence that any customer or member of staff was offended by the tweets
Mr Laws had not posted anything derogatory about Game or anything which would reveal he was its employee
He only engaged in tweeting offensive material in his own time and not on work time
Mr Laws did have explanations for some of the offensive tweets
The Employment Judge therefore found that the dismissal was unfair, but reduced Mr Laws’ compensation by 40% to reflect his own contributory fault.
Appeal to the EAT
The EAT allowed Game’s appeal on the finding of unfair dismissal and sent the case back to a different Employment Tribunal to reconsider whether the decision to dismiss Mr Laws fell within the band of reasonable responses open to Game.
The EAT essentially decided that, in respect of various aspects of his reasoning, the Employment Judge had either impermissibly substituted his own view for that of the dismissing employer, or had reached a decision which was perverse on the evidence. For example, the EAT was dissatisfied with the Employment Judge’s reasoning that Mr Laws was only using Twitter for “private” purposes in circumstances where he was followed by 65 of Game’s stores and had not set his account to “private”.
When considering unfair dismissal claims, an Employment Tribunal must decide whether the decision to dismiss falls within the band of reasonable responses. It is not allowed to substitute its own view for that of the employer, which the EAT considered it had likely done in this case.
Practical Tips for Employers
Ensure that your reasoning in disciplinary outcome letters is clearly set out. Game’s appeal to the EAT and the subsequent rehearing of the case will no doubt be expensive. By setting out its reasoning in the outcome letter in a clear and detailed way, an employer can help the Employment Tribunal avoid falling into the trap of substituting its own view for that of the employer’s, and possibly avoid having to appeal the Employment Tribunal’s decision.
Adopt a social media policy. Ensure that the policy is reviewed regularly, as the nature of social media platforms and the use your business makes of social media evolves. Ensure that updates to the policy are brought to employees’ attention.
Ensure your policy deals with the “blurring” between personal and professional use of social media. This is particularly important if your business makes active use of social media for its own marketing communications. In this case, although Mr Laws did not post tweets about Game’s business, the endorsement from the Preston store manager and the large number of stores that subsequently followed Mr Laws created an association between Game and Mr Laws’ account which we suspect both parties now regret.