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.