The recent decision of the Employment Appeal Tribunal (EAT) in Game Retail Ltd v Laws, highlights that it is possible for employers to defend unfair dismissal claims where there has been a misconduct dismissal arising out of inappropriate use of social media – even where the misconduct occurs outside of work and is not work-related. However, this will depend on the circumstances in each case.

In this case, the Claimant, Mr Laws, was a risk and loss prevention investigator employed by Game Retail, with responsibility for around 100 of Game Retail’s stores based in the north of England. He opened an account on Twitter, a social networking website. This was a personal account which made no reference to Game Retail, but Mr Laws did follow the stores he was responsible for on Twitter, and 65 of these followed him in return.

In July 2013, Mr Laws was investigated, disciplined and summarily dismissed for gross misconduct (he appealed unsuccessfully). Mr Laws had, according to Game Retail’s invitation to the disciplinary hearing, “posted a significant number of offensive, threatening and obscene Tweets” on his Twitter account, “which were in the public domain and therefore able to be viewed by anyone on Twitter, including Game employees in stores that follow you or that you follow.” This was supported by a download of the Claimant’s Twitter profile and of a number of tweets posted between July 2012 and July 2013, 28 of which were identified as offensive.

The EAT overruled the tribunal’s initial finding of unfair dismissal and agreed with Game Retail that dismissal was within the ‘range of reasonable responses’ test.

The EAT reasoned that a balance had to be struck between an employer’s desire to remove or reduce reputational risk from its employees’ social media communications, and the right of those employees to freedom of expression, particularly outside work. Although the tweets were posted in his own time (not working hours) and were posted from his personal Twitter account, Mr Laws’ postings could not be considered to be private. He had not restricted viewing access to his Twitter profile and he was being followed on Twitter by 65 Game Retail stores for which he was responsible, meaning his tweets could be seen by staff and/or customers of Game Retail. It was not necessary for the tweets to have caused offence, or for them to specifically relate to Game Retail, or for Mr Laws to be identifiable on his profile as a Game Retail employee.

The EAT declined to provide general guidance on how to approach cases involving misuse of social media, stating that the correct approach is to apply the standard tests to the specific facts and circumstances – any guidance which it could provide would be too general or obvious to be of much assistance. Nevertheless, it is clear is that employers should have very clear policies on use of social media and should be explicit about expectations of conduct as well as sanctions for misconduct. Employers could also consider asking employees to create separate personal and work-related accounts on websites such as Twitter.