Large numbers of organisations and businesses continue to try to maximise the potential of social media when marketing their services and products. However, they must remain mindful of the difficulties and challenges that can arise with regard to social media usage, particularly in relation to usage by their employees.

The Game Retail case – Misuse of Twitter Account

Most of the reported cases to date concerning the misuse of social media leading to disciplinary action have involved posts made by employees on Facebook. However the recent case of Game Retail Limited v Laws UKEAT/0188/14 heard in November 2014 is thought to be the first UK case involving dismissal for the misuse of Twitter. The claimant was employed by Game Retail, a large retailer of computer games, consoles and other accessories,  and was responsible for investigating losses, fraud and theft in over 100 retail stores. He opened a personal Twitter account and began to follow the Twitter accounts of those stores in order to monitor inappropriate activity by employees. By default his tweets were publicly visible, and in fact he was himself ‘followed’ by a number of stores.

It came to light that the claimant had tweeted at least 28 offensive or abusive tweets through his Twitter account. Following an investigation the claimant was found guilty of gross misconduct and summarily dismissed. He lodged a claim with the Employment Tribunal which found the dismissal to be unfair, the reason being that the Tribunal felt that the tweets were on a private forum, that there  was no proof that customers had seen them and, therefore, the dismissal was disproportionate in the circumstances.

Game Retail appealed and the UK Employment Appeals Tribunal allowed the appeal with a unanimous judgment being given by Judge Eady QC. It held  that the Employment Tribunal had failed to properly apply the test of ‘reasonable responses’ and that it had misinterpreted just how publicly availably the claimant’s tweets would have been. It held that the claimant was tweeting in the knowledge that he was followed by 65 Game Retail stores. His tweets could be seen by staff and potentially Game Retail customers.

The Employment Tribunal’s finding that there was only a theoretical risk of employees and members of the public seeing the claimant’s tweets was inconsistent with the fact that a member of staff had seen his tweets and reported them. Even though the claimant’s tweets were non-work related and generally published on his own time, based on the facts in question the EAT overturned the Tribunal’s decision and remitted the case to a fresh tribunal to consider the question of a reasonable response to the acts in question.

Although this case is a UK decision and not binding in Ireland, the legal principles are the same in Ireland and this decision may therefore be useful for its persuasive value. A second point is that the decision reveals that Game Retail did not have a clear social media policy or IT policy, but fortunately for Game Retail its bullying, harassment and disciplinary policy did provide that  the sending of offensive material through Twitter was prohibited and the claimant should therefore have been aware that his behaviour was unacceptable. However, there have been a number of decisions in Ireland that have found that the absence of a clear social media policy or IT policy is highly detrimental to an employer’s defence of an unfair dismissal claim, for example, and for this reason it is highly advisable  that employers now put in place either a specific Social Media Policy or update their existing IT and Disciplinary Policies.

Social Media Policy

In developing a Social Media Policy for the workplace, organisations need to take special care to integrate this new policy with their existing policies and procedures. There is a clear and obvious connectivity between a Social Media Policy and, for example, existing policies and procedures dealing with email and internet use, remote working, own device usage (e.g. using one's own personal smartphone for work matters), bullying and harassment, and disciplinary matters. Also, an organisation must have regard to data protection and discrimination principles in relation to reviewing, gathering and using information from social media relevant to individuals, particularly when recruiting new employees or when disciplining an employee.

The Social Media Policy should complement the policies and procedures mentioned above, so the first step is to consider whether the company has best practice and up-to-date versions of such policies, particularly those related to IT usage and disciplinary issues. Assuming such policies are already in place, a dedicated Social Media Policy will typically concern itself with an employee's usage of 'social media' websites, such as Facebook, LinkedIn, Twitter, Instagram and YouTube, though the definition used should be wide enough to cover any such online activity of the employee.

The Social Media Policy should specify to employees whether they may use social media at work or not and make clear to employees that, whether such usage is at work or on their own time, employees should still be aware of their obligations not to bully or harass colleagues, not to disparage or bring into disrepute their employer and not to divulge confidential or proprietary information. It should be made clear that failure to comply may result in disciplinary action under the company's Disciplinary Procedure. Employees should be reminded that, when posting comments on Facebook or other such fora, those comments are essentially being placed on the equivalent of a "global notice board"; even where the employee thinks he is posting only to his friends, he has no control over onward dissemination of such a comment and employees must bear in mind the potential reputation risk for their employer.

A Social Media Policy may also specifically deal with issues arising from social media fora that potentially contain the employer's proprietary information, for example the building up of 'connections' on LinkedIn which will include details of company clients, customers or suppliers that the employee has become aware of because of his employment with the company.

Finally, as case law has consistently shown, it is not only crucial to have such a Social Media Policy in place, but also to be able to show that employees were made aware of such policy and its contents.