Businesses need to sharpen up on terms of employment if they are to tackle bad behaviour on private Twitter feeds
A personal remark on a personal Twitter feed can be reasonable grounds for disciplinary action by an employer. That’s the finding of the Employment Appeal Tribunal (EAT) of England and Wales after an employer dismissed a member of staff for posting allegedly abusive, non work-related messages on his personal Twitter account.
The case centred on an employee of Game Retail, who was employed in a role with responsibility for working with 100 of its retail stores. The employee had a personal Twitter account and this was followed by a number of the stores from around the country. When he posted potentially offensive tweets about towns he travelled to, Game undertook a disciplinary investigation which found him guilty of gross misconduct. He was dismissed immediately and later brought a claim for unfair dismissal.
The first stage tribunal ruled in his favour, saying the action was not a reasonable response by the employer, but, on appeal, the EAT said the first stage ruling failed to take full account of the public nature of Twitter and whether the employee’s private use of Twitter was truly private, given he was followed by a number of other employees.
Whilst the EAT recognised the right to freedom of expression, this was to be balanced with the employer wanting to minimise reputational risk, the latter of which is a standard term in employment contracts. The appeal tribunal went even further and advised that there was no need for Game to demonstrate that the tweets had actually caused offence, only that they had the potential to do so.
The ruling is a reminder to business to tighten up on their employment contracts if they want to react to tweets by staff.
“Despite this ruling, private comments made on social media remain a grey area,” said employment law expert Irini Newby, a director of Simcocks. “The EAT did not give any general guidance on when dismissal for social media misuse would be appropriate, saying every case must be judged on the facts and the test of whether an employer is making a ‘reasonable response’.”
Irini added: “Operationally, it’s another aspect of social media usage that needs to be clarified within terms of employment, as employers need to make it clear what online conduct is considered to be unacceptable, whether made on behalf of the company or personally.”
A further tribunal hearing will now decide the final outcome in the case of Game Retail Limited v Laws, in the light of the EAT’s ruling.
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