Decision: Dismissal for gross misconduct could be within the band of reasonable responses for an employer where an employee has posted offensive tweets on their private Twitter account. Although each case will be fact specific, the EAT did not believe that the employee in this case could ever have considered his offensive tweets to be private, given that he knew that he was followed by 65 GAME Retail stores (and their Twitter accounts). He had not activated the privacy settings on his personal account which meant that his tweets could be seen by the staff at the 65 stores, and also potentially be seen by the customers who followed the Twitter accounts of those 65 stores.
Impact: This case is clearly an important one for employers, particularly those employers whose busi- nesses use social media in the promotion of their business, and as a means of communicating with their customers. It emphasises the need to have a clear social media policy so that employees understand what is expected of them and have an idea about what is/is not acceptable. It is fine for an employer to have a social media policy that sets guidelines around its employees’ personal use of social media, particularly where that personal use can impact on the employer’s business.
The case also demonstrates the importance of training employees to understand how the personal use of social media can impact on an employer’s business. Training like this is more than a damage limitation exercise; it also makes it possible to demonstrate to a court (should this be necessary) that the employee was aware that acting in a certain way was unacceptable and could lead to disciplinary action.