Was an employee unfairly dismissed for posting offensive, non-work related tweets in his own time?

We look at the first social media case involving the use of Twitter to reach the Employment Appeal Tribunal (EAT). Game Retail Ltd v Laws (UKEAT/0188/14) involved an employee who was dismissed after posting offensive, non-work related tweets outside of work time. The EAT considered whether the employment tribunal had fallen into the ‘substitution trap’ in finding that the dismissal was unfair, by substituting its own view for that of the reasonable employer when considering whether the dismissal was within the range of reasonable responses.

Facts

Mr Laws had been employed by Game Retail Limited (Game) since 1997 as a risk and loss prevention investigator, with responsibility for around 100 stores in the north of England.

Game’s stores each have their own Twitter profile, which is followed by a large number of its customers and each store manager or deputy manager has access to their store’s account. Mr Laws had set up his own Twitter account in 2012 and he subsequently followed the stores he was responsible for, to monitor their tweets. Whilst Mr Laws did not expressly affiliate himself to Game on his account, one of the store managers actively encouraged his own followers to follow Mr Laws, saying “[…] if your [sic] a Game or GS shop you need to be following this guy”. As a result, a further 64 of Game’s stores began following Mr Laws.

In July 2013 a different store manager notified a regional manager within Game about some of the tweets posted by Mr Laws on his Twitter feed. During an investigation it was found that Mr Laws had posted some 28 offensive tweets in the period from July 2012 to July 2013.

Mr Laws did not deny that he had posted those comments and he admitted that he was aware that he could be followed by the stores and their staff but argued that he had not given consent for any of the store managers to follow him. Game concluded that Mr Laws’ tweets were in the public domain and could be accessed by the stores. Whilst they noted that the account was a personal one and Mr Laws did not affiliate himself to Game, they nonetheless found that Mr Laws’ actions amounted to gross misconduct and he was summarily dismissed. Game concluded that the tweets were “offensive, threatening and obscene” in nature and included remarks that were “intimidating, racist and anti-disability”. The tweets offended “dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people”. Mr Laws claimed unfair dismissal.

Employment tribunal decision

The employment judge found that Game did have a reasonable belief in Mr Laws’ misconduct but that the decision to dismiss him did not fall within the band of reasonable responses. The judge concluded that the dismissal was unfair but found that Mr Laws contributed to his dismissal such that any award made to him should be reduced by 40%. Game appealed against the decision, alleging that the judge had substituted his own view for that of the reasonable employer in deciding whether the decision to dismiss fell within the range of reasonable responses and that his conclusion was perverse. Game also asked the EAT to lay down general guidance for dealing with cases involving the alleged misuse of Twitter in the context of a claim for unfair dismissal.

EAT decision

The EAT observed that Mr Laws’ offensive tweets could be read by the 65 stores who followed him, as well as any customers who picked up on Mr Laws’ account, and not just by his social acquaintances. He had made no attempt to restrict his account or to set up an alternative account purely for private use. In the circumstances, the tribunal had not properly tested the question of whether Mr Laws’ use of Twitter could correctly be described as private usage and had substituted what it considered to be relevant rather than asking what might be the view taken by the reasonable employer.

The EAT also took issue with the tribunal’s conclusion that there was no evidence that any member of staff or of the public had access to the offensive material. This was inconsistent with the tribunal’s other findings on this point, for example it had acknowledged that there was a risk that members of the public or staff might have had access to Mr Laws’ account and/or offensive tweets.

In addition, the EAT rejected the tribunal’s finding that it was relevant that Mr Laws had not posted anything derogatory about Game or anything that might reveal he was an employee of Game on his Twitter feed.

The EAT concluded that the tribunal’s judgment could not be upheld and that the judge had permitted his own focus to become the test, falling into the ‘substitution trap’. The EAT declined to give general guidance about Twitter cases, as requested by Game, but reiterated that the relevant test to be applied by tribunals in unfair dismissal cases was that set out in the Iceland v Jones case, ie whether the employer’s decision and the process in reaching that decision fell within the range of reasonable responses open to the reasonable employer on the facts of the particular case. The case was remitted to a different tribunal for fresh consideration.

Comment

The conclusions reached in this case could be seen to take something of a turn away from previous cases involving the use of social media. In the case of Smith v Trafford Housing Trust, an employee’s Facebook comments about his religious views were not found to be in a sufficiently work-related context to attract the employer’s prohibition against the promotion of political or religious beliefs, despite the fact that he had identified his employer on his Facebook page and his posts could be seen by ‘friends of friends’.

Here, although Mr Laws did not identify his employer on his Twitter page, a number of factors led the EAT to reject the tribunal’s finding that Mr Laws’ comments had been made in the private use of his Twitter account. Whilst the EAT acknowledged that employees must have the right to express themselves, it found that the right to freedom of expression must not infringe upon their employment and must be “balanced against the employer’s desire to remove or reduce reputational risk from social media communications”.

There are some useful points that can be taken away from this case in considering whether an employee’s actions on social media should be subject to discipline, including:

  • How private is the employee’s social media account? The fact that comments are posted outside of work time, from an employee’s private account, will not mean they are immune to disciplinary action. Detailed consideration should be given as to whether the employee’s use of social media was private or not, taking into account factors such as their privacy settings and followers or connections.
  • Do the comments say anything derogatory about the employer?  Even if they do not, they could still warrant disciplinary action; an employer should consider whether the comments infringe their bullying and harassment policies, for example by being intimidating, abusive or discriminatory in nature.
  • What about freedom of expression?  Whilst this is an acknowledged human right, it does not prevent employers from taking action to protect their business and the employee's freedom of expression must be weighed up against the needs of the employer to protect its interests.

Lastly, this decision is a reminder that employers need to have clear and robust social media policies in place, which state when disciplinary action may be taken against an employee.