6 minute read | January.29.2015
In the recent case of Game Retail Limited v Laws, the UK Employment Appeal Tribunal (or "EAT") considered the fairness of an employee's dismissal for offensive tweets. This is the first time this issue has been considered at EAT level. The EAT found that the dismissal was fair, even though the Twitter account was not linked to Mr Laws' employment, and his posts were made in his own time.
Mr Laws was employed by Game as a Loss and Prevention Officer, with responsibility for monitoring and investigating loss, theft and fraud in approximately 100 Game stores across the UK. Game stores tend to have their own Twitter account so they can keep in touch with local store users, and Mr Laws followed a number of his stores (who followed him back). Ironically, the reason Mr Laws did so was to monitor the stores' Twitter feeds for inappropriate content.
Mr Laws set up this Twitter account in his free time, and operated it in his personal capacity. He did not identify his role at Game on his account, and, unlike the stores he followed, did not use the account to communicate with Game employees or customers in a professional capacity. However, he was aware that certain stores followed him, and did not take any steps to address this.
One of the Game store managers complained to Game that Mr Laws had made a number of offensive tweets. There followed a disciplinary hearing into Mr Laws' conduct and 28 offensive tweets were identified. The tweets were reportedly offensive to "dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people". Game investigated Mr Laws' conduct and summarily dismissed him for gross misconduct. Subsequently Mr Laws brought a claim for unfair dismissal in the Employment Tribunal.
As many readers of this blog will likely know, to dismiss an employee in the UK who has been employed for more than 2 years, you must have a fair reason and follow a fair procedure (NB: that's the shorthand version of the law – for more details please contact one of the London employment team). In extreme circumstances where an employee has committed an act of gross misconduct, an employer may be able to terminate the employee's contract fairly without notice (i.e. summarily). This is a very high bar in the UK, and is something employers often fall down on when put to proof in court.
An employee's misconduct – perhaps for posting something like "[t]his week I have mainly been driving to towns the a*** end of nowhere…shut roads and t**** in caravans = road rage and loads of fags smoked" – is one of the five potentially fair reasons for dismissal. For a misconduct dismissal to be fair, the test the Employment Tribunals apply is to establish whether the employer:
In addition, the employer's decision to dismiss the employee as a result of that misconduct has to fall within what is known as the "range of reasonable responses" that a reasonable employer, who found themselves in those circumstances, and in that business, may have taken. So dismissal does not have to be the response that every employer would have taken, or the only available response, but it does have to fall within the range.
The EAT's judgment in this case offers a very useful insight into how the employment courts in the UK will consider the relevant issues when it comes to decisions taken by employers in response to employee misconduct on social media sites. The decision has the potential to enable UK employers to take more robust action on social media infringements in the future as follows:
Ultimately the EAT determined that Mr Laws' tweets were not private, even though they had been posted from his personal Twitter account, operated in his own time. Interestingly, in a previous social media case, the UK High Court decided that an employee's use of his Facebook account to state his religious opinions on gay marriage were not sufficiently work-related so as to justify his employer's decision to demote him. This remained the case despite the fact that in that case, the employer was identified on the employee's Facebook profile, and "friends of friends" could see his profile.
So what should employers in the UK do about employee use of social media? First, if you are concerned about the use of employee's social media accounts and communications, review your social media policy: make sure you are explicit about your expectations of how employees will operate both their professional and personal social media accounts, and what behaviour is and is not acceptable.
Secondly, it may be worth giving your UK employees some clear, practical advice on how to operate their social media accounts, in particular do they use them professionally or identify their employer on them? Can employees connect with customers and clients? Can employees identify their employer and role? Have they considered whether or not their profiles are private? Make sure the policy is explicit about (i) what is considered to be inappropriate use of a social media account, and (ii) the consequences that may result if the policy is breached. Include a clear link in the social media policy to your equal opportunities and/or bullying and harassment policies.
Remember that whilst your employees in the UK have a right to freedom of expression, this is not an unfettered right, and you are entitled to take action to protect your business. It may be worth reminding employees that, whilst you appreciate that sometimes they have bad days and just need to vent, it's always best to think before you tweet.
In the UK, cases like this will always turn on their facts. Here the wide access of Game's staff and customers alike to Mr Laws' personal Twitter account, coupled with Mr Laws' failing to properly restrict the settings of his account or distinguish between private and professional use, influenced the EAT's thinking. More responsible and thoughtful use of Twitter would probably have led to a different outcome.