There is a considerable amount of ambiguity surrounding the relationship between unfair dismissal rules and freedom of expression on an employee’s personal social media account. However, a recent decision which found in favour of the employer has demonstrated that it can be possible to dismiss an employee for making offensive comments on a personal social media account. The case also demonstrates the importance for employers of having a clear social media policy in place, setting out what is considered as inappropriate and the possible sanction for misuse.
In Game Retail Ltd v Laws, a Loss and Prevention Officer employed by a high street video games store had responsibility for investigating theft and loss across around 100 of the employer’s 300 stores. He set up his own twitter account in 2012 and followed the stores he worked with. He did this in order to monitor inappropriate activity by other employees but also used the account personally and posted comments on his own personal views. A colleague subsequently recommended that the stores should follow Laws’ personal account, presumably for any relevant updates to the stores. 65 of the employer’s stores then followed him back on his twitter account. In 2013, another colleague reported Laws for posting a number of inappropriate tweets on his account. The tweets were posted were deemed offensive and abusive and included complaints about the cost of dental appointments, slow caravan drivers, A&E doctors and waiting times. None of the tweets were directly related to the employer or its staff but they could be interpreted as offensive towards some of the people or professions complained about and were expressed in offensive language. The company investigated these tweets and subsequently dismissed Laws for gross misconduct.
The Employment Tribunal held that the employer’s decision to dismiss Laws did not fall within the ‘band of reasonable responses’ that the employer was able to determine and so the dismissal was unfair. However, on appeal, it was concluded that it was possible for an employer to dismiss for conduct relating to misuse of Twitter, even on an employee’s personal account and in relation to personal tweets.
Although the comments were posted on Laws’ personal account which did not specifically state that he was an employee of the Respondent, the comments could not be considered private as they could be viewed by all the stores that followed his account and customers could potentially identify him as connected to his employer. There had also been no attempt made to keep his posts private. The Employment Appeal Tribunal declined to provide further guidance on the misuse of social media platforms and the disciplinary sanctions available to employers, on the basis that each case will be fact sensitive. However, some relevant factors were highlighted. A tribunal will consider:
- if an employer has an IT or social media policy in place when assessing the fairness of a dismissal. If an employee has been made aware and trained on acceptable social media use, disciplinary sanctions for a breach will be much more likely to be upheld;
- if privacy settings have been restricted;
- if actual or potential damage done to customer relations;
- the nature and seriousness of any alleged misuse; and
- any previous warnings for similar misconduct and remorse for actions.
The decision itself should provide some comfort to employers as it shows that even where posts are made on personal accounts, are not directed at colleagues and are made outside work, they could still form the basis for dismissal if the consequences are clearly set out to employees in relevant procedures and effective training. For further information, or to put a Social Media Policy in place in your organisation, please contact Hayley or Hannah.
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