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You are what you tweet? New decision on Twitter dismissal case

Luke Evetts - DAS Law

  1. 04 March 2015
  2. Employment
  3. 0 comments
Stressed man at computer

The Employment Appeal Tribunal (EAT) has recently considered for the first time an employee’s misuse of Twitter (Game Retail Ltd. v Laws). With the prevalence of social media in today’s culture, the decision gives employees and employers plenty to think about.

Mr. Laws was employed by Game as a risk and loss preventions investigator and in 2012 set up his own private Twitter account. His employer had a strong social media presence and used Twitter as a marketing tool, with over 300 stores having their own Twitter profile and feed. Subsequently, the employee started to use his account for limited work purposes and followed 100 of his employer’s stores to monitor their accounts for inappropriate tweets. He was in turn followed by 65 stores.

A store manager raised concerns in 2013, claiming that inappropriate tweets had been posted on Mr. Laws’s account. An investigation determined that he had made 28 offensive tweets concerning a broad range of topics including “dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people”.  Following a disciplinary process, Mr. Laws was dismissed for gross misconduct.

An unfair dismissal claim was originally successful, with the employment tribunal considering (among other things) that the tweets were made on a private account and were not work-related, as well as noting that there was no evidence that any member of the public had seen or been offended by the comments and that Game did not have a social media policy in place.

Game appealed the decision and the EAT decided that the judge had failed to consider important factors, including the very public nature of Twitter, the failure of Mr. Laws to restrict access to his tweets, and the fact he blended private and work use on the same account instead of having two separate accounts. The case was sent back to the tribunal to be reconsidered.

The EAT, however, declined to provide general guidance on cases concerning social media misuse, stating: “The questions that arise will always be fact-sensitive and that is true in social media cases as much as others. For us to lay down a list of criteria by way of guidance runs the risk of encouraging a tick-box mentality that is inappropriate in unfair dismissal cases.”

Despite the EAT’s warning not to generalise, the case does raise some important points to consider for both employees and employers.

Employees

If you want to ensure you don’t get in trouble with your employer for posts on social media, the following points should help keep you safe.

  • Avoid using your personal social media accounts to discuss your employment – prevention is better than cure.
  • If you do post about your employment, ensure your employer is not identifiable and consider whether the post could harm their reputation.
  • Bear in mind that even if a post is not work-related, you could face disciplinary action and dismissal depending on the circumstances.
  • Check if your employer has a social media policy in place and familiarise yourself with it if they do.
  • Consider who you follow and who follows you – is your private account more work-oriented than you thought?
  • Be tech-savvy; learn how to use privacy settings and consider who can view your posts.
  • Remember, more and more employers check your social media presence when you’re applying for jobs; make sure there’s nothing publicly posted on your social media you wouldn’t want them to see.

Employers

Ensuring your employees don’t damage your business’s reputation through social media is a necessity in this day and age. Protect yourself from these issues by preparing yourself and treading carefully.

  • Ensure you have a clear, well-drafted social media policy highlighting what sort of behaviour could result in disciplinary action. Consider including in the policy that disciplinary action could be taken against an employee whose use of a private account could impact on your business.
  • Communicate your policy to employees effectively and provide training where appropriate.
  • If you do need to discipline an employee due to their actions on social media, take into account how many people can see what they have posted, the extent of its link with the workplace, and any complaints received. Consider all the relevant facts before deciding on the most appropriate course of action.
  • Take care to balance the impact of posts on your business interests and reputation with the employee’s freedom of expression. Is there a need to take disciplinary action in the circumstances or would an informal discussion resolve the matter?
  • Always seek legal advice prior to disciplining an employee for misuse of social media.



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