What happened?

In Game Retail Ltd v Laws, the Employment Appeal Tribunal (EAT) decided that an employer had acted reasonably when dismissing an employee for use of his personal Twitter account for non-work related but “offensive” tweets.

Mr Laws was employed by Game as a risk and loss prevention investigator and had responsibility for over 100 stores. The company relied on Twitter and other social media sites for marketing and communications. Mr Laws used his personal Twitter account to follow the accounts of the stores he was responsible for in order to monitor their activity and in turn many of these stores followed his Twitter account. In July 2013, Game’s regional managers were notified of an allegedly abusive and offensive tweet posted by Mr Laws. Following an investigation, 28 offensive tweets were identified. Mr Laws was found guilty of gross misconduct and summarily dismissed.

The Employment Tribunal upheld Mr Laws’ claim for unfair dismissal because it considered that the tweets were posted for private use and it was never established that any member of the public or employee of Game had access to the tweets or associated them with the company. Due to this the Tribunal decided that the dismissal was outside the “range of reasonable responses” open to the employer and so unfair. Game appealed the Tribunal’s decision. The EAT decided that given the “public nature” of Twitter, Mr Laws’ tweets could not be considered to be private and consequently the dismissal could be within the range of reasonable responses open to the employer.

What does this mean?

This case demonstrates that there is a balance to be sought between an employer’s desire to remove reputational risk from the use of social media by its employees and the employee’s right of freedom of expression. While an employer can legitimately restrict an employee’s freedom of expression in the work environment, it depends on the circumstances of the case whether that restriction can extend to the employee’s private life. In this case Mr Laws’ tweets could not be considered private even though they were posted from his personal Twitter account. This was because Mr Laws posted the offending tweets when his Twitter account settings were not set to private, he was aware that he was followed by 65 stores and that potentially staff and customers may see the tweets.

What should we do?

Although the EAT refused to provide general guidance on social media cases such as this, there are a number of practical steps employers can take to reduce the risk of their business being negatively affected by the actions of their employees on social media. Employers should inform employees of the need to create separate personal and work-related Twitter accounts and emphasise the importance of reviewing privacy settings on a regular basis. A clearly worded social media policy that outlines the employer’s expectations as to the use of social media and the possible sanctions that employees may face for breaching the policy will assist employers with this aim.