Setting the boundaries for when staff are tweeting

A personal remark on a personal twitter feed can be reasonable grounds for disciplinary action by an employer according to the Employment Appeal Tribunal following a recent case involving an employee who was dismissed after posting allegedly abusive, non work-related messages on his personal Twitter account.  Sarah Whitemore, Employment Law Partner, here reviews the case and advises employers of how to tackle this growing concern.

The case centred on an employee of Game Retail, whose role required him to work across 100 of its retail stores.  The employee had a personal Twitter account and this was followed by a number of the stores and the employees from around the country.  When he posted potentially offensive tweets about towns he travelled to, Game Retail 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 that the action was not a reasonable response by the employer.  On appeal however, the EAT stated that 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 that 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’s aim to reduce reputational risk. The EAT also said that there was no need for Game Retail to demonstrate that the tweets had actually caused offence, only that they had the potential to do so.

The ruling is a reminder to employers to tighten up on their employment contracts and staff handbooks if they want the ability to take action against a member of staff due to their tweets or any other social media activity.

“Despite this ruling, private comments made on social media remains a grey area,” explains Sarah.  “The EAT did not give any general guidance on when dismissal for social media misuse would be appropriate, saying that every case must be judged on the facts and the test of whether an employer is making a  ‘reasonable response’.”

Sarah concludes,  “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.

If you’re concerned about your employees use of social media and would like your contracts and handbooks reviewed to incorporate a Social Media policy, you can contact Sarah or the Employment Team on 02380 717717 or visit their section of the website here.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.