And The Law Says

Should employees be dismissed for non-work-related social media comments?

January 13, 2015


(Game Retail Ltd v Laws)

Mr Laws was employed by Game Retail Ltd (Game Retail) as a risk and loss prevention investigator with responsibility for approximately 100 out of their 300 game retail stores. He opened a personal Twitter account and began to follow the Twitter accounts of those 100 stores for work purposes, primarily to monitor their activity. Mr Laws gave permission for around 65 Game Retail stores to follow his personal account, and made no attempt to restrict his tweet visibility. This meant that all of Mr Laws’ tweets would be publicly visible.

In July 2013, a manager at Game Retail raised concerns to the company about allegedly offensive and abusive tweets that Mr Laws had posted. Game Retail conducted an investigation and downloaded contents from Mr Laws’ Twitter feed for evidence, where they determined that this happened on 28 different instances. Game Retail considered this as gross misconduct on Mr Laws’ part, because the company solely relies on social media platforms for their communications, which a large number of their customers follow. As a result, Mr Laws’ offensive tweets were visible to Game Retail’s customers through the company’s own Twitter feed. The company took action and promptly dismissed Mr Laws.

Mr Laws claimed unfair dismissal, and the employment tribunal upheld his claim. This was done on the ground that the decision to dismiss Mr Laws did not fall within the band of reasonable response, despite the tribunal acknowledging that some customers and employees might have taken offense to his tweets. Subsequently, Game Retail appealed to the EAT, which overturned the tribunal’s ruling. The EAT held that Mr Laws’ tweets could not properly be considered private, as they were being posted from his personal Twitter account and in his own time. In addition, the tribunal had failed to properly apply the band of reasonable responses test.

The case was remitted to a new tribunal to be heard by a different judge.

Stephen Calderbank Says: The use of social media is fast-expanding in the workplace. Employers should ensure they have a detailed and up to date social media policy. This case highlights the differences in the public nature of Twitter compared with that of Facebook. It also suggests that an employer is entitled to be concerned of there being a chance that offensive tweets will be read, rather than actually needing to prove that the tweets have caused offence.

From a practical perspective, employers policies should remind staff to create separate personal and work-related Twitter accounts, and should be explicit both as to their expectations of social media use, and as to the sanctions that an employee can expect to face if they fail to adhere to these.

Cases such as these will remain fact-sensitive. The EAT declined to give general guidance on the use of social media, stating that any such guidance would either be so obvious or so general as to be unhelpful.

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